552 HYNSON & HYNSON vs. TAYLOR & COTHEAL. [3 IIYNSON & H y xsox against TAYLOR & COTHEAL. APPEAL from Independence Circuit Court. A writ of attachment cannot issue upon a declaration in case for damages sustained , hy the malicious prosecution of a suit; . with a count in Troyer. An action on the case is not founded on any indebtedness; but on the mere justice and conscience of the plaintif f's right to recover. No exception can be taken to the affidavit, in a suit by attachment, until the defendant appears and pleads. He cannot proceed by motion. No particular plea is specified—that must depend on the nature of the defence or A-Lakin. But it must be such a plea as will properly present the question on Which th . e defendant relies; whether it be the validity of the proceedings or the right of action—and issuable. Unless the Legislature, by express enactment, authorizes a plea to be dispensed with, it cannot be done by . the Courts. The • appellants filed their declaration, affidavit and bond, and caused a writ of attachment to be issued, against the appellees as non-residents. The declaration, complained of Taylor & Cotheal r `of a ples a of trespass on the case ;" Two counts allege as . cause of action that . Taylor & Cotheal had; without any reasonable or probable cause of action, maliciously caused their goods and chattels to be attached, and the third count was in Troyer. The writ was only executed by summoning the garnishees. At the return term of the writ, an order of publication was made. -At the next term Taylor & Cotheal by attorney, moved the Court, that the writ and proceedings be quashed absolutely, or their common appearance be accepted, the attachment dissolved, garnishees discharged, and that the cause proceed as other suits at law, or.be quashed and dismissed. The Court dissolved the attachment, and discharged the garnishees ; and took that part of the motion as to dismissal of the suit under advisement. At the next term. .the writ of attachment was quashed and the suit dismissed. PIKE and BORDEN, for plaintiffs in error : But one question is presented in this -case. This question has been settled in this Court upon full examination, in the case of Jones &
ARK. HYNSON & HYINSON vs. TAYLOR & COTHEAL. 553 Others vs. Buzzard and Herndon, where it was shown that the writ would lie in an action on the case for damages. We consider it needless therefore to discuss it here, or again to refer to authority. In any event, after appearonCe, though the writ was quashed, yet final judgment could not go against the plaintiffs. And on this point, if not on the other, the judgment will be found erroneous. When the attachment was dissolved by the first order, the common appearance of the defendants was entered and accepted: after that they Could not object to the writ. FOWLER, Contra: The 4th and 5th section, title Practice at Law in the new code title attachment, p. 115, sec. 2, require that "suits commenced by attachment against tbe property of any person, shall be brought in the county in which such prOperty may be found." Can such a suit be instituted in a county, where no property of defendant is to be found ? Or, if instituted, on return of process.showing that no property was there found, ought it not be dismissed ? An attachment is a proceeding in rem., and where there is a failure to seize the thing itself, is there not an end to the proceeding ? Will a Court, because a plaintiff makes a false clamor, and sues out process in rem., and finds nothing to act upon, allow him on such failure to proceed against the person, and obtain a final judgment, where the law would not have permitted him to do it, without his false allegations and assumption that property was within the jurisdiction of the Court ? To countenance and give final effect to such -a procedure, it is contended, would go far beyond any legitimate construction hertofore put upon remedial statutes even, .to which class this . Court in the case of Jones ce. Others vs. Buzzard and Herndon, have assigned our acts 'upon the subject of attachment. If we are right in .this position, the judgment below against the plaintiffs, was right on this ground alone. Simply summoning a third tierson as garnishee, without any showing whatever . ei,ther before or after the emanation of the , writ, that he Was indebted to the defendants, or had property of their's in possession, could not place the case in a better situation for the plaintiffs. Further, the acts of our Legislature, and in this too they have Vol. 111-36
554 HYNSON & HYNSON VS. TAYLOR & COTHEAL. t' gone as far perhaps as any other Legislative body, given no countenance whatever, even by the most remote implication, to the issuance of a writ of attachment in an action founded on a tort; but by in-tendment, and the letter of the Statute, confine such proceedings to actions ex contractu, on cases properly made out as directed thereby. See new code . p. 115, 116. In section the first, it is declared that "the creditor may proceed against" "absent or absconding debtors." In section 2 "the creditor shall file in the office of the clerk of the Circuit Court of the county where the property may bef found &c." "against his dbetor" &c. In section 3, "the creditor shall" &c. file an affidavit &c. that defendant "is justly indebted" &c. Section 5, "the creditor" shall file bond &c., "conditioned that he will prove his debt or demand" &c. Thus keeping up throughout, the distinct principle, that the process of attachment must be confined to actions ex contractu. And if the Statute be remedial, and to be construed liberally, can such construction be extended beyond the obvious and clear meaning of the Legislature ? It is believed not. And would it not be a strained construction indeed, far beyond any rules known to the law, to say that that body which is legally presumed to be wise, meant by the terms "debtor" "creditor" "debt" "justly indebted," not what is generally understood thereby, but meant "trespasser," • "tortfeasor," "trespass," "assault and battery," "malicious prosecution?" It is true, that by virtue of the 29th section of the act last referred to, in a proper case, a doubt might arise whether a defendant attached would not be required to appear and plead, before the attachment could be dissolved. But could it thereby have been in-t. nded, that if a writ should issue \ in a case. wholly unwarranted by law, or in which the proceeding itself was void, that non-residents sl'ould be compelled to appear and answer the action—plead to the
deelaration—and be bound by a judgment in personam, in such unauthorized procedure ? The motion then of the defendants, how-rr inartificially it may appear upon the record, was made in apt .--ne and manner, and was properly sustained, as the defendants re-,- -tfully urge upon the Court. Admit, for the sake of argument that the writ on its face appears valid ; that the affidavit is in ,(!a form and substance, although it does not conform to the Ian-
ARK.] HYNSON HYN SOS vs. TAYLOR & COT:HEAL. • 555 guage of the Statute ; yet when we look to the declaration, the state-, ment, which is the foundation of the action, required by the statute to be filed, and find it in utter violation of the law giving the remedy, not for a debt, nor for damages for breach of contract, nor for a cause of action ex quasi contractu; but for a tort, a malicious prosecution in a civil suit, does it not vitiate the whole proceeding, and render it illegal and void from the beginning ? Shall a plaintiff. by framing ingeniously an affidavit, be permitted by a court of justice, to seek redress far an alleged wrong in a mode unauthorized by law, and which by his declaration clearly appears ? The case of Jones & Others vs. Buzzard & Others relied upon by the appellants, upon exaMination will be found to have no bearing whatever upon this case, except as to the class of Statutes to which our laws . of attachment belong. It is further respectfully suggested and submitted to the reflections of the bench, whether at the present day an action for the ma- . licious prosecution of a civil suit can be sustained, even where personal service can be made upon defendants. Has pot such A' ction or mode of redress become obsolete, and at this day without legal countenance ? It is believed to have been so decided in the case of Fletch-er vs. Ellis, in the . late Superior Court of the Territory of Arkansas. DicaiNSON, J., delivered the opinion of the Court: The proceedings by attachment against absent and absconding debtors is a remedy given by Statute (Rev. Code 115), in a particular class of cases, without which the debt might be lost, and being in derogation of the common law, must be strictly pursued. No latitude can be given calculated to enlarge the remedy by extending it to cases not embraced by the language upon which suit may be instituted by ati;acliment. To avail . h imself of the privilege, the plaintiff must not only file a declaration containing a true statement of the nature of bis demand, but an affidavit that the defendant is justly indebted to him. He is also required to file at the same time a bond with sufficient security conditioned that he will prove his debt or demand on a trial at law, or that "he will pay such damages as shall be adjudged against him." It is only upon all these requi-•
556 Hvxsox & H yxsox vs. TAYLOR & COTHEAL. [3 sites being complied with, that the writ issues, upon which so much of the defendant's goods and chattels, lands and tenements, credits and effects, is attached, "as shall be sufficient to secure the debt as sworn to, with interest and costs." The declaration 'here is in case for damages claimed to have been sustained by the plaintiffs in error, in 'the malicious prosecution of a suit previously instituted in Louisiana by the defendants in error against one of the plaintiffs and one John Ringgold. There is also a count in Troyer. There is however no allegation of actual indebtedness, nor of a breach of contract as between these parties. It is an established rule of law, "that all . acts in pari materia are to be taken tog-ether, as if they were one law." 6 Bac. Abr. 382. Throughout the hole of the statutory provisions regulating the mode . of proceeding by attachment, we find the words "creditor," ''debtor," and "debt,," showing clearly that the relative character of creditor and debtor must have existed at the time: and that the remedy is confined exclusively to actions ex contractu: and that by no reasonable constructiOn can it be made to apply to torts: If in this instance, the plaintiff in error could proceed by attachment, might not a Party do so in detinue, trespass vi et armis, or in any form of action ex delictor? We call see no limit, if this construction is once allowed • It would be in contradiction tO all the adjudica-tions upon Statutes similar to our own. An action on the case is not founded upon any indebtedness, but upon the mere justice and conscience of the plaintiff's right to recover. 1 Ch. 487; Bird vs. Randall, 3 .Burr. 1353 1 Wit. 45; 2 Saand. 155, n. 4; 8 J. R. 453. It is in the nature of a bill in equity, and in general whatever will in equity and in conscience, preclude the plaintiff's right of recovery, may be given in evidence in case under the general issue. This case is clearly one, in which proceedings are not authorized by attachment. The case of jones and other vs. Buzzard and Hern-don, does not, we apprehend, conflict with this opinion. That case differs widely from the one now before us, and was founded upon an act , of the late Territorial government, and was presented upon a peculiar state of pleading. On the contrary, as far as applicable, it sustains us in the views entertained in this case.
ARK.] HyNSON & HYNSON l ' .s. TAYLOR & COTHEAL. 557 The sufficiency of the exceptions to the affidavit will not be determined: They were not taken in accordance with the statute, (see.. 29 Attachment Rev. Stat.) which require, that the party shall appear and plead, before he can except. The defendants, it is true, say they do appear ; but they omit to plead, and elect to proceed by motion, which is una.uthorized. No particular plea is named or required ; that must depend upon the nature of the defence or objection. But it must be such a plea, as will properly present the question, upon which the defendants rely ; whether it . be. the validity of the proceedings, or the right of action. It must be a plea upon which an issue can be taken, either in law for the adjudication of the Court, or of fact for the determination, of a jury .; and, if necessary, enable . the revising . tribunal to pass upon the judgment of the Circuit Court. Unless the Legislature; by special enactment, authorizes a 'plea. to .be dispensed with, the Courts have no right to do. so, but must require the established rules of pleading to be observed. A. contrary course most frequently obstructs the course of justice, and throws around a case, so much doubt and confusion, as often causes a sacrifice of rights, and brings unmerited reproach upon the profession. * Judgment reversed, and case remanded.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.