Southworth v. Resing

Heydenfeldt, Justice, delivered the opinion of the court. Wells, Justice, concurred.

Upon examining the affidavits in this case, it appears that the salient points in the plaintiff’s affidavit showing cause for the arrest, are sustained by the affidavits of others, who are disinterested witnesses, while they are controverted alone by the affidavit of the defendants.

In trying a motion of this kind, like any other fact, it must be decided by the weight of testimony. To entitle a party to the remedy of arrest, it is not necessary he should show positively the commission of a fraud. It is sufficient if the circumstances detailed will induce, in a reasonable mind, the belief that a fraud was intended to be perpetrated. And as a matter of practice, it is safest to award an arrest, even in cases of doubt, because the defendant is protected against the abuse of the process by the undertaking of the plaintiff, which the law requires to that effect, while on the other hand, frauds are proverbially concocted with so much artfulness and ingenuity as render them at all times difficult to be exposed; and when such a case actually exists, the plaintiff is remediless, without the process of arrest. A different rule would almost, if not certainly, destroy its efficiency as a legal remedy. Under the circumstances shown by the various affidavits in this case, I think the arrest ought to have been permitted to remain. The order vacating it is therefore reversed, and the cause remanded.