Blaustein v. Standard Oil Co.
| Decision Date | 30 October 1945 |
| Docket Number | 136 |
| Citation | 45 A.2d 527,43 Del. 222 |
| Court | Delaware Superior Court |
| Parties | JACOB BLAUSTEIN v. STANDARD OIL COMPANY, a Corporation of the State of Indiana |
Caleb S. Layton, C. A. Southerland and Aaron Finger for plaintiff.
Hugh M Morris and Edwin D. Steel, Jr., for defendant.
OPINION
This case calls for a consideration of the subject of foreign attachment as it exists in the State of Delaware, with particular reference to its application to foreign corporations not doing business in this State. The precise question we must determine is the nature or character of the underlying indebtedness of the defendant justifying the issuance of the writ in an action ex contractu, in view of the language of the pertinent statutes of the State.
Certain principles concerning attachments in Delaware seem firmly settled. It is quite clear that the subject had its origin in the custom of London. Reynolds v. Howell, 1 Marv (15 Del.) 52, 31 A. 875; McLaughlin v Bahre, 5 W. W. Harr. (35 Del.) 446, 166 A. 800; Woolley on Delaware Practice, Sec. 1240.
Indeed, an old Act passed when what is now the State of Delaware still had legislative union with the Province of Pennsylvania, speaks of the writs issued "pursuant to anie Customs of cities or corporations in England * * *."
It is equally clear that the whole subject of attachments runs counter to the ordinary course of the common law, and was exclusively created by statutory enactment. Partly for this reason the statutes have uniformly required and received a strict construction. Fowler v. Dickson, 24 Del. (1 Boyce) 113, 74 A. 601; Reynolds v. Howell, 15 Del. (1 Marv.) 52, 31 A. 875.
Because the subject of attachment is the creature of legislative enactment, so cases in other jurisdictions on the subject must be evaluated with a clear knowledge of the theory and statutory provisions of that jurisdiction where the question arose.
It would be of little compensating value to trace the statutory history of the subject of attachments in this State. The first statute of which we have knowledge, passed after Delaware achieved complete and separate legislative jurisdiction, was adopted in 1734. This Act seems not to have included the subject of attachment as applicable to non-residents, and this was supplied in 1740. These Acts are found in the first compilation of Delaware Laws, of 1741 at pages 128 and 184. These Acts seem not to have met the desired result and were repealed insofar as applicable to attachments of over 40 shillings, by the Act of 1752, found in the 1752 compilation of Delaware Laws at page 314. This Act was in turn repealed by the Act of March 24, 1770, to be found in the currently available Vol. I, Laws of Delaware, page 460.
In all of the Acts, above mentioned, prior to 1770 it was required before a writ of attachment should issue that an oath or affirmation be made by or on behalf of the plaintiff that the defendant was "justly indebted" to the plaintiff in a sum "upwards" or "or more" than 40 shillings. In the Act of 1770 there first appeared the provision that process of attachment could issue upon two returns of "non est" as applied to a resident, and one return of "non est" as applied to a non-resident, "and such proof made of the cause of action as the court shall think fit." Where recourse was not had to such other process and the returns of "non est," the requirement of the affidavit that the defendant was "justly indebted" in the specified sum was continued. Insofar as attachments against non-residents was concerned, it was required by all of the above Acts that the affidavit should state that such non-resident "avoids coming into this government to answer his or her just debts, as it is believed" and this provision was strictly construed. Evans v. Hudson, 1 Del. Cas. (Boorstin) 198. By the Act of Jan. 27, 1823, Vol. 6, Laws of Delaware, p. 261, the requirement that the oath include the statement that the non-resident "avoids" the State of Delaware, was removed, and the mere averment that the defendant is a non-resident and is "justly indebted" became sufficient as we have it today.
The similarity of the procedure anciently existing in the two remedies of arrest by capias and proceeding by attachment is too marked to escape some notice. Both were proceedings to compel the appearance of the defendant; both were actions which were required to be preceded by an affidavit of the existence of an indebtedness of a jurisdictional sum, and the special bail taken in each case had direct reference to the indebtedness actually charged in the affidavit. The bail to the action given in a capias case allowing the defendant's release and defense to the action was not dissimilar to the special bail required for the dissolution of the attachment. The proceeding and practice whereby in a capias case the plaintiff under a rule to show cause of bail was compelled by affidavit, or otherwise, to justify the capias or release the defendant under common bail, bore a direct resemblance to the proceeding originating in the attachment Act of 1770, allowing the issuance of the attachment upon returns of "non est inventus" and "such proofs made of the cause of action as the court shall think fit." Both were clearly for the purpose of compelling justification for unusual process.
Leaving the general subject of attachments and confining our attention to the matter of foreign attachments, we may immediately pass to this question as applied to foreign corporations. In Vogle v. New Granada Canal & Steam Nav. Co., 1 Houst. (6 Del.) 294, it was determined in 1856 that the process of foreign attachment in Delaware applied only to individuals, and did not apply to a foreign corporation. The Court commented on the anomalous relationship of a foreign corporation to the matter of special bail as an element of appearance.
The conclusion reached in the Vogle case was responsible for the Act of Mar. 2, 1857, Chap. 426, Vol. II, Laws of Delaware, but incorrectly numbered 424. This Act, insofar as is here pertinent, is in the exact terms of Sec. 4631, Revised Code of 1935, the statute here involved. The extension of the process of foreign attachment to foreign corporations provided by this Act, brought into being certain provisions entirely different from the formerly existing general provisions of foreign attachments as applicable to individuals. No alternative method of procedure upon return of "non est inventus" was provided for in the later Act as to foreign corporations, and in the affidavit required as a preliminary step it was also required that the affidavit show that the defendant "is justly indebted to the said plaintiff in a sum of money, to be specified in said affidavit, and which shall exceed fifty dollars."
This then is the pivotal statute upon which our attention must be focused. We are not concerned with any other statute applying to causes of action ex delicto in nature, but solely with the present statute concerning actions ex contractu. Because the proceeding by attachment was not a common-law remedy, the words of Smith v. Armour & Co., 1 Penn. (17 Del.) 361, 40 A. 720, 721, are appropriate: "It [foreign attachment] is purely the creature of the statute, and has been quite uniformly viewed as a violent proceeding, by which the property of the defendant is taken and seized upon before the claim is judicially determined by a competent court of law; and has, therefore, been uniformly strictly construed."
We are of the opinion, then, that the remedy of foreign attachment against a foreign corporation in an action ex contractu must be authorized by the statute herein mentioned or some other legislative Act, and the court may not extend the process of attachment by judicial construction. Attention has been drawn to the extension from time to time of the process of attachment. Such extension, when made, has been the result of legislative rather than judicial action.
We propose, then, to briefly consider (a) the nature of the indebtedness contemplated by the provisions of Sec. 4631, Revised Code of 1935, and required to be set out in the affidavit to be filed as the preliminary step of such process; (b) the enlarging effect, if any, on Sec. 4631 brought about by other statutory provisions relating to foreign attachment, and (c) the nature of the indebtedness relied upon in the present case.
(a) Under the precise terms of Sec. 4631, the writ of attachment shall only issue when the plaintiff, or someone for him, may properly make affidavit --
1. That the defendant is justly indebted to the plaintiff.
2. That the indebtedness is a sum of money which shall exceed $ 50, and the amount of the indebtedness must be specified in the affidavit.
It is clear that the claim of the plaintiff must relate to an indebtedness of the defendant to the plaintiff. Upon this basis the court, in Smith v. Armour & Co., supra, held that without special statutory provision the writ of foreign attachment could not issue in an action sounding in tort; that decision led to specific legislation covering ex delicto actions, with which we are not here concerned.
Not only must the indebtedness exist as in an action ex contractu, but it must exceed $ 50, and the amount must be specified in the affidavit.
To us it seems that no one, in order to avail himself of a violent and unusual process, can properly swear to an indebtedness and specify the amount of such indebtedness, unless such indebtedness is either liquidated in character or capable of being made certain by some fixed or available formula. One cannot specify what one cannot ascertain. We think, then, the damages must either be liquidated in character, be ascertainable from...
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