Humphreys v. Matthews

Opinion by Mr. Justice Trumbull : Can an action of account be commenced by attachment, and if so, was the affidavit upon which the writ in this case issued sufficient P The Circuit Court, on motion of the defendant, dismissed the proceeding, and that decision is now assigned for error. Our attachment act is very broad, and the benefit of its provisions is not confined to any particular form of action. Any creditor is authorized, under certain circumstances, to sue out an attachment, and the statute is silent as to the nature or form of the action in which the writ may issue. The law was designed to furnish a creditor with the means of collecting his debt, in a case where he would be unable to do so in the ordinary mode of proceeding, and we can see no reason why it should not be as applicable to actions of account as to any other class of cases. The claim of a joint tenant, tenant in common or co-parcener is just as sacred as that of any other creditor; and because he cannot resort to the more usual common law actions to enforce his rights, affords no reason why he should be deprived of the benefit of the attachment act, when he presents a case that would authorize an attachment, were he permitted to sue in debt or assumpsit. As to the sufficiency of the affidavit, there can be no question. After setting forth the dealings between the parties, and the nature of the indebtedness, with great particularity, it alleges that the defendant, by means of the premises, is indebted to the plaintiff in the sum of four hundred and fifty-three dollars and fifty-four cents, and that said defendant is not a resident of the state. Upon such an affidavit an attachment may properly issue. The judgment of the Circuit Court, dismissing the attachment, is reversed, and the cause remanded, at the costs of the defendant in error. Judgment reversed.