This appeal is from a judgment of the Superior Court of Baltimore City overruling a motion to quash an attachment on original process, instituted by the Mayor and City Council of Baltimore against William F. Downs. The affidavit *Page 687 alleges that said William F. Downs is bona fide indebted unto the said Mayor and City Council in the sum of $24,680, over and above all discounts, and that the said Mayor and City Council has good reason to believe:
1st. That said Downs has assigned, disposed of, or concealed, or is about to assign, dispose of or conceal, his property, or some portion thereof, with intent to defraud his creditors.
2nd. That the said Wm. F. Downs fraudulently contracted the debt or incurred the obligation aforesaid.
The account filed with said affidavit is as follows: "Baltimore, Md., April 3rd, 1909. William F. Downs is indebted unto the Mayor and City Council of Baltimore in the sum of $24,680 for money stolen by the said William F. Downs from the said Mayor and City Council of Baltimore, while the said William F. Downs was a clerk into the office of the Register of the Mayor and City Council of Baltimore, and acting as such in said office, and in the employment of the said Mayor and City Council of Baltimore, as such, which said $24,680 at the time of such theft as aforesaid by the said William F. Downs, was the property of the said Mayor and City Council of Baltimore, and which said property and money so stolen by the said William F. Downs as alleged, the said William F. Downs has taken away and appropriated to his own use; said sums of money having been stolen on the dates opposite the amounts as follows."
The several separate amounts so alleged to have been stolen, and the several dates on which the several amounts are alleged to have been stolen, are then set out, the aggregate amount of said several amounts being alleged to be $24,680, and said aggregate amount being stated in said account, not to be, nor intended to be taken as a statement of the entire amount so taken and stolen.
The declaration contains three counts for money payable by the defendant to the plaintiff:
1st. For money received by the defendant for the use of the plaintiff. *Page 688
2nd. For money found to be due from the defendant to the plaintiff on accounts stated between them.
3rd. "For money stolen by the defendant from the plaintiff," repeating the exact language heretofore transcribed from the affidavit.
Certain property was attached, and the defendant moved to quash the writ assigning the following reasons:
1st. Because the Court was without jurisdiction in the premises.
2nd. Because it appeared from the proceedings that the relation of debtor and creditor never existed in respect to the money alleged to have been stolen.
3rd. Because it appeared from the proceedings that there was no contractual obligation due the plaintiff induced by the fraud of the defendant.
4th. For other reasons to be shown at the trial of the motion.
The second and third reasons are essentially the same, and each merely amplifies and makes specific the general ground of the first reason.
The fourth is the usual general reason alleged, to cover any unforeseen particular objection, but none such has been brought forward.
The grounds of objection may be reduced to two, and may be restated thus:
1st. That exclusive jurisdiction of all matters growing out of a larceny or embezzlement is under the law of this State vested in the Criminal Courts.
2nd. That if this contention be denied, there is still no jurisdiction under the attachment law in the civil Courts for want of any contractual relation between the parties in respect to the money alleged to have been stolen.
These questions have never arisen in Maryland, and we shall consider them therefore first upon principle, and then in the light of decisions elsewhere under statutes similar to our own. *Page 689
In order to avoid confusion of mind as to the real question for determination, it must be remembered that at this stage of thecase, it is wholly immaterial to inquire whether a larceny or embezzlement has in fact been committed but merely whether that charge, if sustained by proof at the proper time, is a charge of an indebtedness, either express or implied, which under our statute will warrant an attachment. The motion to quash the attachment is strictly analogous in its operation, to a demurrer in an ordinary suit, in that it admits for the purpose of the motion, all the facts alleged in the affidavit and account, while it challenges the jurisdiction of the Court upon such facts. The test of jurisdiction which is thus necessarily suggested, is this. If the facts thus alleged would sustain an action of assumpsit in the ordinary form, the attachment should lie, if they would not, the motion to quash should prevail, or, enlarging the verbal proposition, but not the legal principle involved, if an action of assumpsit could be maintained upon the facts stated, aside from an attachment, why should an attachment, as an original proceeding be rendered nugatory merely because accompanied by a proceeding in personam, such as would support a judgment, if there were no proceeding in rem?
This question is sought to be avoided by the able counsel for the appellant through the contention that under sec. 261 of Art. 27 of our Code of Public General Laws a special statutory jurisdiction is conferred upon the Criminal Courts of the State in all matters of restitution in larceny; "the restoration of the goods, or their value, being predicated on conviction, and being part of the punishment prescribed, and said Courts having exclusive jurisdiction of all felonies committed within the bounds of their authority." This contention is argued with ability but after careful consideration we cannot adopt it. It is inaccurate, we think, to say that the restoration of the property stolen is a part of the punishment prescribed. It is a part of the judgment of the Court directed to be entered, but not a part of the punishment prescribed, not a part of the sentence to be imposed. The language *Page 690 of that section is: "Every person convicted of the crime of simple larceny to the value of five dollars or upwards, shall restore the money, goods, or thing taken, to the owner, or shall pay him the full value thereof, and be sentenced to thepenitentiary for not less than one year nor more than fifteen years;" and in practice the Courts observe this distinction, the approved and usual form of compliance with this section being as follows: "The judgment of the Court is that you restore to the owner the property stolen, or the full value thereof, and thatas a punishment for your offense, you be confined, etc." The order for restoration of the property must be regarded merely as declaratory of the duty of restoration, and as designed to effect an immediate restoration of any of the stolen property in the custody of the Court or of the State's Attorney without the necessity of recourse to a civil suit for its recovery. If the contention of the appellant should be accepted as correct, it would be in the power of every thief who had stolen a chattel, or a bond for the payment of money to bearer, or money, not impounded by the State's Attorney for use in evidence at the trial, to deliver it over to any other person, and thus effectually deprive the owner of all opportunity of reclaiming it. The larceny of property changes the possession, but does not divest the title. The title to property stolen is as readily established in a civil suit for its possession, as in a criminal prosecution for its larceny, and it cannot be supposed that the Legislature designed by the enactment of sec. 261 of Art. 27, to withold from the real owner, until the conviction of the thief, the common law remedies for the restoration of possession of property wrongfully taken from him, or the common law remedies for recovery of the value of property or money so wrongfully taken. It is one thing to say, as our Declaration of Rights does say, that the inhabitants of Maryland are entitled to the common law of England, and another to say as the appellant contends, that the common law of England must be enforced in Maryland in all cases without regard to its applicability to our institutions, circumstances *Page 691 or methods of procedure. Forfeitures and confiscations, as a part of the common law system of England have their place in England today, but they are alien to the spirit of our form of Government, and were declared by CHANCELLOR BLAND, in Hepburn'sCase, 3 Bland, 114, to be "now entirely obsolete." Coming however to the specific contention of the appellant in this case it has been emphatically denied by so high authority as JUDGE COOLEY, who says in his work on Torts, 1st Ed., page 87: "In this country the common law doctrine of the suspension of civil remedy in case of felony has not been recognized. The reason usually assigned is, that in this country the duty of prosecuting for public offenses is devolved upon a public officer chosen for the purpose, instead of being left as in England to the voluntary action of the party injured by crime. The civil and the criminal prosecution may therefore go on pari passu, or if the latter is not commenced at all, the failure to seek public justice is no bar to the private remedy." This text of JUDGE COOLEY's is sustained by numerous decisions among which is the case ofBoston Worcester R.R. Corporation v. Dana, 67 Mass. 83, in which the Court concisely states: "The doctrine of the English law, that for goods feloniously taken, no action lies against the felon before the institution of criminal proceedings against him, is not in force in this commonwealth." Reference to the brief of the appellees in this case will supply an array of cases to the same effect. It should be observed here that theMassachusetts case cited above, in speaking of the doctrine of the English law, does not base the right to a civil action against the felon, upon conviction, as contended here, but upon the institution of criminal proceedings against him, and the institution of such proceeding without conviction satisfies the reason assigned by JUDGE COOLEY, and generally conceded to be the true reason for the doctrine of the English law, and in this case the records of this Court disclose the fact that a criminal prosecution for the identical larceny out of which this civil action arises, was instituted and is now pending in the Criminal Court of Baltimore *Page 692 City, having jurisdiction over the prosecution of the crime charged.
Therefore upon any rational application of the doctrine of the English law, there is no room for the application of the contention of the appellant above mentioned.
It remains however to consider whether this case falls within our statute providing for attachments upon original proceedings.
This is contained in section 36 of Art. 9, which provides in brief that every person who may be a plaintiff in any action or proceeding, before any judicial tribunal in this State, may proceed by attachment in the following cases, upon the conditions and in the manner herein provided:
The first condition is that the plaintiff or someone in his behalf shall make affidavit before the clerk of the Court from which the attachment shall issue, * * * stating that the defendant named in the writ of attachment is bona fide indebted to the plaintiff in the sum therein stated, over and above all discounts; and that the plaintiff knows, or has good reason to believe, among other things, first, that the defendant has assigned, disposed of, or concealed, or is about to assign, dispose of or conceal, his property, or some portion thereof, with intent to defraud his creditors; and second, that the said defendant fraudulently contracted the debt or incurred the obligation aforesaid. It is the required affidavit which gives jurisdiction to the Court to hear a motion to quash. That affidavit has been made, and jurisdiction has therefore attached, if the averments of the affidavit, as construed by our own decisions, comply with the requirements of our statute.
The foundation of such an attachment is the averment of an existing indebtedness, so that our inquiry must be what circumstances or facts will warrant an averment or affidavit of indebtedness. If one buys goods of another, intending to pay for them on the terms stipulated, but failing to do so, he may if a non-resident, or an absconder, be proceeded against by attachment. If, being a resident, he buys goods, not intending *Page 693 to pay for them, or if after his purchase, he assigns or disposes of his property or is about to do so, with the intent to defraud his creditors, he may be proceeded against in like manner. Why then, if by theft, he acquires possession of the goods or money of another, with the intent to defraud such other person, may he not be proceeded against by attachment? Is he any the less, in law or in morals, a debtor, because he has acquired possession of another's goods by violence or trespass, than if he had acquired possession by a contract unmixed with fraud, at the time the contract was made, or by a contract obtained by fraud or artifice on his part? We do not think so; the highest Court in this State has long ago decided that this term "indebted," as used in the attachment acts is not to be construed in a technical or strict legal sense. Wilson v. Wilson, 8 Gill, 192; Franklin v.Claftin, 49 Md. 38. It should be conceded that the claim must arise ex contractu, but this contract may be implied, and need not be express. "It must be such as the plaintiff can aver by affidavit to be true." Hough v. Kugler, 36 Md. 194 The true test of the applicability of the statute is whether the claim can be sworn to. Orient Mutual Ins. Co. v. Andrews, 66 Md. 374;Continental Ins. Co. v. Reynolds, 107 Md. 106. InMoneyweight Co. v. McCormick, 109 Md. 183, JUDGE THOMAS said: "A party has a right to recover as a debt money obtained from him by fraud or embezzlement."
In National Bank v. Fonda, 65 Mich. 533, the affidavit was almost the same as in this case. There as here, it was contended that the attachment law only refers to actual and direct contract relations, and does not apply where the contract is made such by legal intendment only. The Court however said: "It would not be going very far to hold that the appropriation of these moneys now sued for was a violation of the defendant's contract of employment * * * the duties of an employment always arise out of a contract relation. A declaration setting out the employment and the duty of paying over (or accounting for moneys) and a failure to do so would be a very plain case of suit directly on contract. *Page 694 The fact that the failure has in some cases, been made criminal, does not destroy its contract relation * * *. We have no authority to graft an exception on the statute, and hold that there are differences in implied contracts, and that where an action of tort will lie the fact that assumpsit will also lie does not make the case one of contract. * * * In cases of bailment there has always been a choice of actions between actions on the case and assumpsit, which is itself, really an action on the case. * * * There is no such equity in favor of wrongdoers that exceptions should be created in their favor. It is rather the duty of the Courts to hold them subject to process where the law by fair construction, reaches them."
So in Garrott v. Jaffray, 73 Ky. 419, the Court said: "The provisions of the Code make no distinction between express and implied contracts. If made by the parties it is express; and if created by legal presumption upon a given state of facts, it is an implied contract; and in either case an attachment may be issued and sustained."
And in Central Transportation Co. v. Pullman Car. Co.,139 U.S. 60, it is said: "There is an implied contract to make compensation for money which it has no right to retain."
We do not think it necessary to cite further authorities, nor to prolong this opinion by further reasoning of our own.
The briefs in the case on both sides are full and interesting, and reference may be had to them for the decisions on the subject. These are not entirely uniform, but both the current and weight of authority sustain the conclusion we have reached.
For the reasons stated the judgment will be affirmed.
Judgment affirmed with costs to the appellee above and below. *Page 695