Floyd v. Blake

James, J. It is conceded that this action is to recover damages for an assault and battery. It was commenced by the issuing and delivery of a summons for service, which the officer [350] was unable to serve, and subsequently, upon proof by affidavit that the defendant had departed from, the State to avoid the service of said summons, or kept himself concealed therein with like intent, a warrant of attachment was issued, by virtue of which certain property of the defendant was seized, and is held to answer such judgment as may be obtained against him. The Bevised Statutes only authorized attachments against “ absconding, concealed, and non-resident debtors,” and the seizure of their real and personal property for the payment of debts. The warrant of attachment given by the Code is not limited to debtors, nor to proceedings for the recovery of debts. It is general in its provisions, and to be in harmony with the general scope and purpose of the Code, must be held as extending to all actions for the recovery of money. Under the Code the warrant of attachment is a provisional remedy, which the codifiers in their report declared to be “ a remedy applied before judgment, with a view of rendering it effectual, whatever it'might be, and to be applied at any time during the progress of the suit, and not alone at the commencement, as required by the Bevised Statutes.” And it was held in Houghton a. Ault (16 How. Pr., 79 ; S. C., 8 Ante, 89, note), that “ an attachment under the Code is not a process for the commencement of an action; it is an order in-the action for the arrest of the debtor’s property, in the nature of bail, for the payment of such judgment as the plaintiff may obtain.” In respect to the actions wherein an attachment may issue, the Code exhibits a wide departure from the provisions of the Bevised Statutes. By the latter the attachment is given only against debtors, while the Code gives it in all actions for the recovery of money. By the Code, all forms of action are abolished; remedies in the courts are divided into actions and special proceedings, and an action is declared to be an ordinary proceeding in a court of justice. It then declares that “in an action for the recovery of money against a corporation created by or under the laws of any other State, government, or country, or against a defendant who is not a resident of this State, or against a defendant who has absconded or concealed himself, or whenever any person or corporation is about to remove any of his or it's property from [351] this State, or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, any of his or its property, with intent to defraud creditors, as hereinafter mentioned, the plaintiff at the time of issuing the summons, or at any time after-wards, may have the property of such defendant or corporation attached in the manner hereinafter prescribed, as security for the satisfaction of such judgment as the plaintiff may recover” (§ 227); and “ the warrant may be issued whenever it shall appear by affidavit that a cause of action exists against such defendant, specifying the amount of the claim and the grounds thereof, and that the defendant is either a foreign corporation, or not a resident of this State, or has departed therefrom with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with like intent, or,” &c. (§ 229.) It will thus be seen that this warrant is, by express terms, given in all actions for the recovery of money, and is nowhere limited to actions against debtors, or to such as arise on contract. These provisions can be applied as well in actions of tort as in actions of contract, and with as much propriety and justice. An action of assault and battery is as much an action for the recovery of money as an action for the breach of a contract, and the amount claimed, and the grounds thereof, can as well be stated in the former case, and with as much certainty as can the claim for unliquidated damages in the latter; and if in an action of slander, or assault and battery, the defendant be a non-resident of the State, or if a resident, he has departed therefrom with the intent to avoid the service of a summons, or keeps himself concealed therein with that intent, a case is brought within the very letter and spirit of the Code, which authorizes a warrant of attachment. The poet has said: “Who steals my purse, steals trash ; ’tis something, nothing; 'Twas mine, ’tis his, and has been slave to thousands ; But he that filches from me my good name, Bobs me of that, which not enriches him, And makes me poor indeed.” If a good name is so much more to be desired than riches, why should not the law afford the same facilities for enforcing [352] a judgment for an assault upon character that it does for an assault upon the purse ? It was urged that in the one case the defendant might be arrested and held to bail, while he could not in the other. It is true that in the one case the order of arrest may go forth, but it is not always effectual. If the defendant be a non-resident, or absent from the State, or keeps himself concealed within it, the order would be of no avail. In such case a defendant with large property within the State might set a plaintiff at defiance, and through the instrumentality of agents, remove or dispose of his property at his convenience, at any time before judgment. I am therefore of the opinion that an attachment, as a provisional remedy, may issue as well in actions of tort as on contract, whenever it is made to appear by affidavit that a cause of action exists against the person named as defendant, specifying the amount of the claim, the grounds thereof, and that the defendant is not a resident of the State, or has departed from the State to avoid the service of a summons, or keeps himself concealed therein with that intent. Motion denied. Footnotes [*] This view is supported by Ward a. Begg (18 Barb., 139); and Hernstien a. Mathewson (5 How. Pr., 196); but the contrary was held in Gordon a. Gaffey (Ante, 1). Compare also Ackroyd a. Ackroyd (Ante, 345). The words, “ in an action arising on contract, for the recovery of money,” which occur in section 129 of the Code, relating to the form of summons, are construed to mean an action to recover a liquidated demand arising on contract. (Tuttle a. Smith, 6 Ante, 329, and cases there cited.)