McDonald v. Forsyth

LTAPTON, J. The question in this case is whether a plaintiff in an action on the case for a tort has a right under our statute to an attachment. The plain and obvious construction of the statute is, in our opinion, against the right to an attachment except in actions upon contracts. It is not our province to determine whether this distinction is a wise one, if it is manifest that the Legislature have adopted it. There may bo, as has been contended,many cases where damages for a wrong done is the object of the suit, in which the plaintiff’s right to this extraordinary process of the law might be maintained upon principles of expediency and justice, whilst it must be admitted, that there are many others, in which the propriety of withholding the attachment is quite as obvious. A distinction had to be drawn, and the line fixed by the statute is probably about? as satisfactory as any other which could have been adopted. The first section of our Attachment law provided that creditors may sue their debtors by attachment, in certain specified cases. Upon the use of these general terms of creditor and debtor is founded all the argument which can be made to support the position of the plaintiff in error. 1 regard the terms as sufficiently definite, to exclude all idea of embracing within the law any demands except such as grow out of contracts. The words do not, in ordinary acceptation, nor in strict legal parlance, apply to any other class of demands. It is true, that the State law has made demands, not founded upon contract debts, which were not so originally, as in certain statutory penalties recoverable by an action of debt; but this is only an exception to the general rule, and it does not prove that all other demands or claims of a similar nature, are debts, and create the relation of debtor and creditor. But without entering upon any critical examination of these terms, I think, that the subsequent provision of the act, taken together or viewed separately, .are a legislative interpretation of the meaning of those terms as used in the [392] first section of tlie act, and sufficiently limit tlieir application to the class of cases already alluded to. The first forty sections of the law are upon the subject of original attachments, the forty-first section then commences with a series of provisions for attachments in the progress of a suit, and reads thus : “Any plaintiff in an action of debt, covenant or assumpsit, which shall have been commenced by summons, and without original attachment, may at any time pending the suit, and before final judgment, sue out an attachment in such action on filing an affidavit and bond as required in cases of original attachment.” What motive could there be for limiting these auxiliary attachments if original attachments were permitted in all cases ? I cannot conjecture any plausible reasons for making such a distinction. The words plaintiff and defendant are substituted for creditor and debtor, merely for convenience, and the use of these words rendered it necessary to limit their general meaning by specifying the forms of action, to which it wras intended to confine the process. The change was a natural one, and I do not understand the words plaintiff and defendant to have any other meaning than the words creditor and debtor in the first section. But if we look further, we see this same distinction running through the whole law. The 04th section points out the jurisdiction of the several courts — a matter regulated altogether by the amount involved. “The Circuit Court and justices of the peace shall have concurrent jurisdiction in attachment causes, where the demand sworn to Is not less than fifty dollars, nor more than one hundred and fifty dollars, and shall be evidenced by a bond or note for the direct payment of money, and where the demand sworn to should be less than fifty dollars nor more than ninety dollars, and shall be founded on a contract other than a bond or note.” Nothing is said here about actions ex-delicto, in some of which justices of the peace had jurisdiction. If they wrere embraced in the first section of the law, no reason can be perceived why justices of the peace should not have shared in this jurisdiction, were the amount in controversy did not exceed that to which the law regulating these courts had already limited them. The same remark will apply to the first section of the second article. In this the jurisdiction of justices in attachment cases, is specially defined. It is admitted that no power is given to them to issue attachments in any action ex-delicio. No mention is made of such actions. Justices of the peace had jurisdiction in actions of trespass, to the amount of fifty dollars, and concurrent jurisdiction with the Circuit Courts in such actions, where the damages claimed were between twenty and fifty dollars.(a) If any action founded on a tort is embraced within the first section of the attachment laws, all such actions must fall within the same construction, and we shall then have a plaintiff in an action for slander entitled to his attachment. This is so contrary to the general spirit of the act itself and so little in accordance with justice or propriety, that we would naturally expect so important an innovation to be clearly defined and not left to nice constructions. Judgment affirmed. Footnotes [a] (a) But see contra, 1 Wag. Stat. p. 180, §§ 12, 14.