The opinion of the court was delivered by
This is an appeal from an order dissolving an attachment, on the ground that the affidavit on which it'had been granted was insufficient. The affidavit contained the general charge, stated upon information and belief, that the defendant was disposing of his property and effects with intent to defraud his creditors. This general charge, even if made upon positive knowledge, would not have been sufficient ground for issuing the attachment, unless supported by the statement of facts and circumstances warranting such allegation.
As it is only made upon information and belief, it requires the statement of such circumstances in its support as would enable the court to conclude that the causes warranting the issuing of the attachment existed. The only circumstance alleged is a statement claimed to have been made by the defendant, as follows: “lam running my business as an agent so as to save trouble with creditors until I can pay.” The proof must bring the case within the provisions of Section 250 of the code to warrant the issuing of the attachment in the present case. The attachment is there allowed whenever the defendant is about to remove any of his property from the state, or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete any of his property with intent to defraud creditors. It is not alleged that the defendant has removed, or intends to remove any of his property out of the state. It must then appear that he has either assigned, disposed of, or secreted his pi’operty, or is about to do so with intent to defraud his creditors. It must be assumed that the defendant is engaged in mercantile business, and is selling and disposing of his property in the manner usual in the course of such business. The fact that he is acting as an agent of another, whether properly or improperly, does not in itself warrant the conclusion that there is anything unusual in the manner in which he is making sales and deliveries of his stock in trade. The most that can be argued is that he has covered up and obscured his title to such property. The attachment law is designed to prevent parties from placing their property beyond the reach of an execution with the intent of defrauding their creditors. It was not intended to arrest the due and proper *479conduct of mercantile or other fair business dealing, although such dealing may have the effect to place property beyond the reach of an execution. The statute looks to an act of fraud consummated by an actual disposition of the- property such as to place it beyond the reach of creditors. The mere fact that one who is indebted has covered up and concealed his title to property is not sufficient ground for issuing an attachment against him; it must also appear that the motive with which he is disposing -of his property is the intent to defraud his creditors. Even admitting that the evidence contained in the affidavit tended to show that the defendant was using the name of another as a cover to his business transactions, that would not in itself be sufficient. That might well be, and yet the property remain in his hands subject to an execution. The plaintiff must go further and show an actual disposition of the property made, or intended, with intent to defraud his creditors. This, in our judgment, he has failed to do.
The appeal must be dismissed.
McIver and McGowan, A. J.’s, concurred.