Porter v. Hildebrand

The opinion of the court was delivered by Bell, J. — In its origin, and under the acts of 1705, and 1789, the process of foreign attachment furnished a remedy, simply for the recovery of debts or damages, arising ex contractu. It is authoritatively said to be a means of securing the appearance of a non-resident debtor; Fitch v. Ross, 4 Serg. & Rawle 564, and in the only Pennsylvania cases in which the question has been made, it wras denied that it lay to avenge injuries ex delicto. Jacoby v. Gogell, 5 Serg. Rawle 450, Piscataqua Bank v. Turnley, 1 Miles, 312. Indeed, so far as I am informed, it has, at no time and nowhere been esteemed a mode of vindicating every wrong, which might be committed by a non-resident or his agent, and the impolicy of making it so is strongly intimated in Jacoby v. Gogell. As a peculiar remedy for enforcing payment of debts and other pecuniary obligations assumed by our neighbors or aliens, it has been found useful, though certainly not unattended with inconvenience; but I have heard no sufficient reason suggested for hazarding the doubtful experiment of conceding the extended efficacy, now, for the first time, claimed for it. If such reasons exist, they would be more properly addressed to the legislature, where alone resides the power of extending the sphere of its action, by specifically declaring the additional causes of complaint to which it should be applicable. An attempt by us to extend the circle of its operation, could only be effected by the declaration of a general rule, which would bring within its remedial power every species of tort, embracing every injury to persons, to property, and to reputation, including defamation, crim. con., assault and battery, and trespass de bonis asportatis; a stride which would be more apt to attract admiration of its boldness than commendation of its wisdom. The argument which favors it, rests principally, if not altogether, upon considerations of convenience and expediency, but .these, addressed to a judicial tribunal, are wholly insufficient to warrant so large a departure from established understanding and settled practice, however potent 'they might be found in the ear of another branch of the government. But it is said the legislature, by the 43d and succeeding sections of the act of 1836, relating to foreign attachments, intended to endow them with capacity for the redress of all personal injuries inflicted by non-residents. Such an intention is nowhere expressly set down in the statute, and I have been unable to extract from its provisions any, the slightest implication of it. On the contrary, a comparison of the new enactment with prior legislation [132] and judicial determination, will show that the leading object was to digest and codify principles and rules before ascertained, and by reducing them to the form cf a statute, to render them more accessible to inquiry and facile of application. There are, to be sure, some additions for the improvement of the system, but these obviously have no relation to the question now agitated. The only one to which we are referred as possibly importing an intent to enlarge the operation of the writ, is the section which prescribes its form. It is suggested the words, “ so that he be and appear, &c., to answer of a plea, (setting forth the cause of complaint,)” are broad enough to comprise all complaints. And so they are. Yet the question recurs, were they used in a sense so comprehensive ? That they were not, is indisputable, from the nature of the remedy, as understood before the act of 1836, and the absence of any direct expression to indicate an intended extension of it; an omission wholly irreconcilable with the imputed legislative design. Rut admitting all this, it is urged the plaintiff finds a secure footing in the character of his suit. It is said that though in form sounding in tort, it springs, in truth, from contract; and is subject to all the incidents of actions so founded. The nature of the remedy against common carriers, and the rules by which it is governed, have undoubtedly given rise to much diversity of sentiment and some contrariety of decision; some judges have been disposed to treat it as quasi ex contractu, though founded on the custom, and laid in express tort; while others have classed it according to the form of declaration used by the plaintiff. As illustrative of the former inclination, I may refer to Powell v. Layton, 2 N. r. 356, where a defendant was allowed to plead in abatement the non-joinder of his partner, though the narr. averred tortious negligence alone. Sir James Manseield, before whom the action was tried, seemed to think the remedy was necessarily founded in contract, and referred for the source of his impression to an observation of Lord Manseield, that if a common carrier accept goods to carry, and then die, an action will lie against his executor. And so it will; but this by no means proves the position assumed. Since then, the subject has been more fully examined, and is, consequently, better understood. All the cases which treat of it were reviewed by the Supreme Court of New York, in the Orange Bank v. Brown, 3 Wend. 158, and glanced at in our own cases of Livingston v. Cox, 6 Barr 362; McCall v. Forsythe, 4 W. S. 179; and Smith v. Seward, 3 Barr 342. These, after referring to the right of the plaintiff to bring either assumpsit on the implied contract, or case for negligence, fully establish that the form of action selected is to be governed by the rules applicable to it, in all other instances. The difficulty frequently experienced had been in determining from the shape of the declaration, which form of remedy was adopted; but Smith v. Seward, following [133] Corbett v. Parkington, 6 Barn. & Cress. 268, ascertain tbe criterion to be, not only in the absence or presence of an averment of promise, but of consideration -also.. Accordingly, in that case, a motion in arrest of judgment, because tbe jury bad found against one of tbe defendants only, was overruled, on tbe ground that tbe declaration being for a tort, was both joint and several. So, in McCall v. Forsythe, a plea in abatement for non-joinder, failed of success, because tbe plaintiff bad elected to sue for a tort, and not for a breach of contract. Tbe very same thing was properly done, and for tbe same reason, in tbe case before us. That reason is conclusive, under tbe principles I have brought to view against tbe employment of a foreign attachment. Whether an action against a carrier upon bis undertaking can be initiated by this process, it is unnecessary to say; certainly, one founded in pure tort, giving tbe plaintiff tbe advantage of suing a number less than all tbe persons associated in the business of carriers, cannot. Another question disclosed by tbe record is, whether a recovery can be bad for tbe value of tbe carpenters’ tools, which tbe jury have found were a reasonable part of tbe plaintiff’s baggage. In Hawkins v. Hoffman, 6 Hill 590, it is said that baggage is not strictly confined to clothing, but includes many other articles of comfort and convenience, as even a gun and fishing-tackle; and in McGill v. Rowand, 3 Barr 451, a recovery for tbe value of a wife’s jewelry was permitted. Under tbe principles which seem to have governed in these cases, I do not perceive why tbe plaintiff may not call on tbe stage proprietors to make good the value of tbe tools lost, upon tbe special finding of tbe jury. Tbe right to carry tools as baggage, is unquestionably open to abuse; but in the language of tbe court, in tbe case last cited, tbe correction is to be found in tbe intelligence and integrity of tbe jury called to determine, under tbe circumstances of each case. It is, it is said, a common thing for journeymen mechanics to carry in their trunks with clothing, a small and select portion of their tools. To this practice I see no such objection as ought to put this kind of property out of tbe protection afforded to tbe necessaries a traveller is compelled, by legitimate considerations, to transport with bis person. Upon this score, tbe judgment rendered below is, I think, unobjectionable. Tbe remaining inquiry, whether tbe court properly estimated tbe act of 16th February, 1846, in permitting tbe addition of tbe defendant’s Christian name, is one of importance in practice, but happily without difficulty. Prior to tbe act, this court, for want of power, refused to sanction an amendment of tbe writ, by changing tbe averment of a defendant’s name from John to James. To supply this defect, tbe statute confers tbe power to permit such amendments of tbe record, when it shall appear a mistake has been made in tbe Christian or surname of any party, plaintiff or defend [134] ant. In Horbach. v. Knox et al., 6 Barr 377, it was objected that the act did not sanction the change of a Christian name, because the amendment contemplated was in, and not of the name. But this hypercriticism was properly put aside with the observation that the object was to remedy a defect in the administration of justice, and therefore a liberal interpretation should be awarded to the statute. Less than this would not only frustrate the legislative intent, but run in contradiction of the professional sentiment, which is fast learning to regard merely technical objections as entitled to little favor. Now what difference in principle is there between a total change of name and supplying an omitted one. The surname is correctly given; the conferred name omitted, because unknown. Why, under the act, should a plaintiff be denied the privilege to fill the blank, which he is admitted to strike out and supply ? The one case is as much within the mischief felt, as the other, and both are equally within the equity of the remedy provided. To attempt a distinction in the splitting of such a hair as this; would indeed evidence a singular inclination to return to the nice subtleties which marked the early history of the common law. The only danger to be apprehended from a liberal construction is, of a mistake in the service of process; but this is always within the control of the proper tribunal. Such a mistake would always be committed in the service of a writ, without the insertion of any name. No one could possibly be summoned by the exhibition of process so emasculated. The objection to the nature of the writ used, goes to the root of the action; but I have noticed the other errors assigned, in obedience to the act of Assembly, and because, should the action be renewed, a profitless contest upon indisputable points may be thus avoided. Judgment reversed.