Minga v. Zollicoffer

• Decision Date: 31 December 1840
• Citation: 1 Ired. 278,23 N.C. 278
• Court: North Carolina Supreme Court
• Parties: AMBROSE MINGA v. JULIUS H. ZOLLICOFFER.

1 Ired. 278

23 N.C. 278

AMBROSE MINGA

v.JULIUS H. ZOLLICOFFER.

Supreme Court of North Carolina.

December Term, 1840.

An original attachment cannot issue in this State for any cause of action arising from tort, but only for those founded on contract.

This was a case brought from Halifax Superior Court of Law on an appeal by the defendant from the decision of his honor Judge HALL, made at Fall Term, 1840. The plaintiff sued out an original attachment against the defendant and declared against him (in the usual form) for an assault and battery, alleged to have been committed by the defendant upon the person of the plaintiff. The defendant having appeared and replevied, moved to quash the writ or dismiss the suit, on the ground that the attachment was not a proper suit or process to be sued out on the cause of action set forth in the plaintiff's declaration. But the presiding Judge, being of opinion that the attachment was a proper process in this case, and was rightfully sued out, overruled the defendant's motion and ordered him to plead to the action, from which order he prayed, and his Honor allowed an appeal to the Supreme Court.

B. F. Moore and Whitaker for the plaintiff .

Badger and Daniel for the defendant .

GASTON, Judge.

The provisions in our act of Assembly, in relation to the remedy by original attactment, purport to be directed against absconding or non-resident debtors.--The case set forth in the 1st section Rev. Stat. c. 6, is “that a person indebted” hath removed or is removing himself out of the county privately, or so conceals himself that the ordinary process of law cannot be served on “such debtor.” That provided for in the second is, when a person, who shall be an inhabitant of any other government, so that he cannot be personally served with process, “shall be indebted” to any person or resident of this State. The cases referred to in the 13th are those, where by law a justice hath jurisdicdiction, and complaint is made on oath that any person hath removed or is removing himself out of the county privately, or so absconds or conceals himself that the ordinary process of law cannot be served “on such debtor,” or that “such debtor” is an inhabitant of another government. It is true that where these sections prescribe the oath in regard to the existence and extent of the debt, they use the terms “debt or demand;” but it would seem clear that these are regarded as expressing claims of the same kind, for in the form of the attachment, given in the 4th section, it is recited that “A. B. (or A. B, agent, attorney...