The Minnesotian. [volume] (St. Paul, Minn. Territory) 1851-1852, 1851-12-13

ry, for which the proper remedy is by an
action of debt. So. if verbally agree TO
pay man a certain price for certain par
eel OF goods, and fail in the performance,
an action of debt lies against me. 3, B.
Com. l54. This deiini, on, perhaps, is lit
tie antiqua.ed and somewhat too narrow
for by the common law, debt is now a
proper remedy upon many implied as well
as upon express contracts, Stephens Nisi
Prius, ll76. In legal parlance debt can
not be said TO exist, except where sum
OF money is due from one party to another,
upon an express or implied contract, for
which an action OF debt or indebitatus as
sumpsit would lie at the common law. In
such cases, the one party may be said TO
owe the other u debt, who may claim it
go nomine, and not as damages merely.
In such cases, debt and covenant, or debt
and ass,impsit were generally concurrent
remedies, but they were very far from be-
ing so in all cases.
Where plaintiff has claim against
dc!endat for detl co nom;ne, or where the
latter is indebted to him, and in such cases
only, can the plaintiff properly make afii-
davit, '.lhat he is afraid of losing his debt.'
He cannot swear that he is afraid of losing
a debt, unless a debt exists. In those
cases only where the relation of debtor
and creditor exists, can the plaintiff cnti-
tie himself to an attachment under the
last clause of subdivision 2, Section 1876,
page 346, r. S. The provision thus con-
strued, is an exceedingly liberal one, and
allows a party to take out an attachment
almost Of course, in very large and inn
portant class Of cases, and on compliance
with the other conditions of the statute,
in other cases. This construction is in
accordance with the plain and obvious
meaning of the provision in question, as
well as in harmony with the legal detini-
ton of the term debt and it is fair to
presume, in acc ,rdance also, with the in
cniion of the legislature. Had the law
makers intended 10 give an attachment
under this provision. in actions for danaa-
ses as well as for debt, they would have
said SO.
The claim of the plaintiff in this action
is not debt. An action of debt, never
could have been maintained upon it. His
claim is for damages, by way Of indemnify
for breach of covenant. The defendant,
though bound to indemni y him for his loss
if any, owes him no debt. The relation
OF debtor and creditor does no, exist be-
tween the parties. The plaintiffby making
affidavit that he is afraid of losing his debt,
cannot convert claim for damages into a
debt. 1t is misnomer to call it debt.
Whatever may be the rule Of damages in
his case. their amount is moi even ascer-
tertainable from the face Of the obligation
on which he sues. He has not therefore.
brought his case within that provision OF
the Statute, au.horizig an attachment TO
issue on aft iavit Of party that he sis
afraid of losing his debit
In coming to this conclusion, have had
reference to general principles only, and
not to any peculiar circumstances or hard
ship attendant upon this particular case.
An order must be entered, vacating the
warrant Of attachment; but as the ques-
lions now decided, are new. and this is The
second time the plaintiff has been put TO
the trouble and expense of con- esting a
motion for the same cause, neither party
is entitled to costs of the motion as against
| the other.
]. FULLER.
j. w. NoRrH. and BABcocK & Will
kINsoS for Plaintiff.
II. r. NELSON and VIM. HoLLrNsuEAD
for Defendant.