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 adopted by the Legislature, fixing the character of the demand upon which suit may be instituted by attachment. To avail himself of the privilege, the plaintiff must not only file a declaration containing a true statement of the nature of his 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 requisites 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. Thére is also a count in Trover. 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 together, as if they were one law.” 6 Bac. Abr. 382. Throughout the whole 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 action's 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 delicto ? We can see no limit, if this construction is once allowed: It would be in contradiction to all the adjudications 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 plaintiffs right to recover. 1 Ch. 487; Bird vs. Randall, 3 Burr. 1353 ; 1 Wil. 45 ; 2 Saund. 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 others vs. Buzzard and Herndon, 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 pleadings- On the contrary, as far as applicable, it sustains us in the views entertained in this case.
The sufficiency of the exceptions to the affidavit will not be determined: They were not taken in accordance with the statute, (sec. 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 unauthorized. No particular plea is named or required; that must depend upon the nature of the defence or objection. But it roust 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, en,ablethe 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.