McDonald v. Forsyth
| Decision Date | 31 October 1850 |
| Parties | MCDONALD & REW v. JACOB FORSYTH ET AL. |
| Court | Missouri Supreme Court |
The defendants were owners of the steamboat Pioneer in March, 1849, and the plaintiffs were owners of a warehouse, standing at Beardstown, on the bank of the Illinois river. The plaintiffs sued defendants in case alleging that through the negligence, carelessness and fault of the defendants' servants, managing said boat unskillfully, the boat was run against the said warehouse, and prostrated its walls, and removed the building from its foundation, and greatly damaged it. The proper affidavit was made and the steamboat Pioneer attached as the property of non-residents, and to bring them within the jurisdiction of the courts of this State, and proper bond filed for their protection. The defendants moved the Circuit Court to dissolve the attachment. 1. Because suit did not lie by attachment for such cause of action. 2. Because the plaintiffs are not creditors, nor the defendants debtors, mutually. 3. Because there is no indebtedness from defendants to plaintiffs. The court granted this motion and the plaintiffs excepted. The suit was then dismissed on a stipulation between the parties that no exception should be taken for such dismissal, and no errors assigned thereon in this court--and accordingly, the only error assigned is the dissolving the attachment.
CROCKETT & KASSON, for Plaintiffs. The non-residence of the plaintiff furnishes no ground of distinct consideration. The question is to be regarded as if the action was brought by a citizen of this State. Posey v. Buckner, 3 Mo. R. 604; Graham v. Bradbury, 7 Mo. R. 281. Attachment lies upon simple contract, express or implied; and the terms “debtor and creditor” are used in actions of assumpsit universally, and on an account current with interest account; attachment also lies for damages for breach of contract. Brady v. Hill, 1 Mo. R. 315. And for an unliquidated penalty given by statute, and penalties for malfeasance. Also on a quantum meruit where the damages are wholly matter of proof. Thompson v. French, 10 Serg. 452; Rockwell's case, 11 Ohio, 130; Jacob v. United States, 1 Brock. 520; Van Deusen v. Blum, 18 Pick. 229.
POLK, for Defendants. The only question in this cause is, whether a writ of attachment could be legally issued? I maintain it could not. Code of 1845, p. 133, §§ 1, 2, 3, 6, 41, 64; Tidd's Pr. 122, 144, 146, 150, 151.
The question in this case is whether a plaintiff in an action on the case for a tort has a right under our statute to an attachment. The plain and obvious construction of the statute is, in our opinion, against the right to an attachment except in actions upon contracts. It is not our province to determine whether this distinction is a wise one, if it is manifest that the Legislature have adopted it. There may be, as has been contended, many cases where damages for a wrong done is the object of the suit, in which the plaintiff's right to this extraordinary process of the law might be maintained upon principles of expediency and justice, whilst it must be admitted, that there are many others, in which the propriety of withholding the attachment is quite as obvious. A distinction had to be drawn, and the line fixed by the statute is probably about as satisfactory as any other which could have been adopted.
The first section of our Attachment law provided that creditors may sue their debtors by attachment, in certain specified cases. Upon the use of these general terms of creditor and debtor is founded all the argument which can be made to support the position of the plaintiff in error. I regard the terms as sufficiently definite, to exclude all idea of embracing within the law any demands except such as grow out of contracts. The words do not, in ordinary acceptation, nor in strict legal parlance, apply to any other class of demands. It is true, that the State law has made demands, not founded upon contract debts, which were not so originally, as in certain statutory penalties...
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