Morton v. Pearman

By the Court. Benning, J., delivering the opinion. Was the court below right in overruling the motion to dismiss the attachment ? We think so. The ground of the motion was, that attachment does not lie in a case for the breach of a promise of marriage. The validity of the-ground depends on the import of the expression, “money demands,” contained in the act of 1857, authorizing attachments to issue “in cases sounding in damages ” (acts of 1857, 23). That act is in the following words: “That from and after the passage of this-act, in all cases of money demands, whether arising éx contractu or ex delicto, plaintiffs shall have the right to sue o.ut attachments when defendant shall have placed himself in such situation as will authorize plaintiffs to sue out attachment, upon the plaintiffs complying with the statutes, now in force, in relation to issuing attachments.” Is the demand arising from the breach of a promise of marriage, a “ money demand ?” We think it is. It is a demand for money, and not a demand'for anything else. It is not a demand for specific performance.. Neither [325] party to such a promise has the right to a decree for the specific performance of the promise. True, the amount of the demand is uncertain, is unliquidated, but that does not prevent it from being a demand for money. • Being a money demand, then, it is within the words of the statute. Is it not, also, within the reason of the statute? We think it is. The old law provided for all cases of certain— of liquidated money demands. Therefore, the object of the new law must have been provision for uncertain, unliquidated, money demands. To say otherwise, is to say that the legislature intended, by the statute, what was unnecessary and useless. There was not, then, we think, any validity in the ground of objection to the attachment. Judgment affirmed. Note. — This was the last Court at which Judge McDon aid presided. He resigned before the meeting of the court at Athens, on the 4th Monday in May, and Linton Stephens, Esq., of Sparta, was appointed by the Governor to fill the vacancy.