It is conceded that this action is to recover damages for an assault and battery. It was commenced by the issuing and delivery of a summons for service, which the officer
The Bevised Statutes only authorized attachments against “ absconding, concealed, and non-resident debtors,” and the seizure of their real and personal property for the payment of debts.
The warrant of attachment given by the Code is not limited to debtors, nor to proceedings for the recovery of debts. It is general in its provisions, and to be in harmony with the general scope and purpose of the Code, must be held as extending to all actions for the recovery of money.
Under the Code the warrant of attachment is a provisional remedy, which the codifiers in their report declared to be “ a remedy applied before judgment, with a view of rendering it effectual, whatever it'might be, and to be applied at any time during the progress of the suit, and not alone at the commencement, as required by the Bevised Statutes.” And it was held in Houghton a. Ault (16 How. Pr., 79 ; S. C., 8 Ante, 89, note), that “ an attachment under the Code is not a process for the commencement of an action; it is an order in-the action for the arrest of the debtor’s property, in the nature of bail, for the payment of such judgment as the plaintiff may obtain.”
In respect to the actions wherein an attachment may issue, the Code exhibits a wide departure from the provisions of the Bevised Statutes. By the latter the attachment is given only against debtors, while the Code gives it in all actions for the recovery of money.
By the Code, all forms of action are abolished; remedies in the courts are divided into actions and special proceedings, and an action is declared to be an ordinary proceeding in a court of justice. It then declares that “in an action for the recovery of money against a corporation created by or under the laws of any other State, government, or country, or against a defendant who is not a resident of this State, or against a defendant who has absconded or concealed himself, or whenever any person or corporation is about to remove any of his or it's property from
The poet has said:
“Who steals my purse, steals trash ; ’tis something, nothing; 'Twas mine, ’tis his, and has been slave to thousands ; But he that filches from me my good name, Bobs me of that, which not enriches him, And makes me poor indeed.”
If a good name is so much more to be desired than riches, why should not the law afford the same facilities for enforcing
It was urged that in the one case the defendant might be arrested and held to bail, while he could not in the other. It is true that in the one case the order of arrest may go forth, but it is not always effectual. If the defendant be a non-resident, or absent from the State, or keeps himself concealed within it, the order would be of no avail. In such case a defendant with large property within the State might set a plaintiff at defiance, and through the instrumentality of agents, remove or dispose of his property at his convenience, at any time before judgment.
I am therefore of the opinion that an attachment, as a provisional remedy, may issue as well in actions of tort as on contract, whenever it is made to appear by affidavit that a cause of action exists against the person named as defendant, specifying the amount of the claim, the grounds thereof, and that the defendant is not a resident of the State, or has departed from the State to avoid the service of a summons, or keeps himself concealed therein with that intent.
Motion denied.
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This view is supported by Ward a. Begg (18 Barb., 139); and Hernstien a. Mathewson (5 How. Pr., 196); but the contrary was held in Gordon a. Gaffey (Ante, 1). Compare also Ackroyd a. Ackroyd (Ante, 345). The words, “ in an action arising on contract, for the recovery of money,” which occur in section 129 of the Code, relating to the form of summons, are construed to mean an action to recover a liquidated demand arising on contract. (Tuttle a. Smith, 6 Ante, 329, and cases there cited.)