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

upon prOmlsSOfy notes, money DOn0S ana
other contracts for the payment OF money
upon their face; and SO changed the lit
eral sense of the law by Interpretation, as
to make it conform to his own views. In
doing this, it seems to me, that he trench
edupon the prerogative of the legislature !;
and his decision in its full extent, is in
conflict with that of Judge Edmonds in
Dibble VS. Mason, l, code Rep. 81. The
reason assigned for his decision is, that by
restricting such notices and judgments TO
actions on contracts for the payment Of
money, an assessment OF damages will be
rendered necessary in other cases, and the
defendant thereupon have an opportuni y
to contest the amount without putting i'll
an answer for that purpose. On the 9TH
er hand, it may be urged, that the pro-
ceedings in very many, if not most cases,
will be simplified and shortened by allow
ing the plaintiff 10 take judgment for the
amount of his claim, of course, in all ac-
tons for the recovery Of money only, in
which the defendant makes no defence,
and thus, the delay, trouble and expense
of an application TO the court be saved
This was the view of the New York Com
missioners of. practice, and their first re-
port to the legislature Of that State, was
in accordance with it. But the legisla-
ture modified their report, SO as TO allow
judgment to be thus taken, only in ac-
tions arising on contract for the recovery
of money only. 1t was proposed at one
time, to allow it to be taken only in ac-
TONS on contract for the payment OF money,
but the proposition was rejected. That
onr own legislature were not unapprised
of the distinction between an action on
obligation fer the recorery Of money, and
an action on an obligation for the payment
of money, appears from section 43. sub.
l, p. 1857 of the Revised Statutes, althou h
that section is somewhat ambiguous.
Had the court the power to mike or al
ter the law, it would con orm it to the
views of Judge Johnson, in the case above
cited. But having the pawer Of in! erpre-
tation only, TO hold that by the expression,
sin an ACTON arising on obligation for the
recovery OF money only the legislature
meant, ian action on an obligation for the
payment of money only would be spe
cies of Judicial legislation, IN which the
court is not disposed TO indulge, as well
as an open abandonment of the obvious
classification of actions adopted by the law
making power. The notice in The sum
mons, is therefore held % be sufficient and
proper.
The warrant Of attachment in this case,
was properly issue simultaneously with
the summons, and before the service of
the latter. Sec. l34, page 346, II. S.
The decision of the New York Superior
Court, in the case OF Fisher vs.. Curtis. 2.
Code Rep. 81, TO the contrary, is based
upon the limited jurisdiction OF that tribu
nal, and is not applicable to- court Of gen.
eral jurisdiction like this. The langu ge
of our statute is express, and the inter-
probation OF it cOn.cnded for on the part
OF the defendant would greatly impair the
rene ly by attachment, and render it near
" useless.
+ zee ole defendant objects to the issuing Of
'Paut warrant Of attachment against him,
and moves to vacate it, also on the ground
O: the insuflicency OF the affidavit on
which it was granted.
After sc ting forth the same cause of
action as the complaint, and laying his
dam ,ges ior The breach OF the de. end.lnt's
covenants at ten thousand dol ars, the affi-
davit of the plaintiff states: ''that he is
Justly entitled 10 that sum from the said
de cndant, and that he has reason 10 fear
and does fear that he shall lose his said
debt wherefore he prayS that an attach
mrnt my issue" sc. This he snppoSes
10 be compliance with The last cause Of
IL % &
This is an acton for the recovery of
money, within the meaning Of Section l34
on the same page. The affidavit suili-
cientlv states Il cause of action against the
defendant, and the ground Of the plaintiffs
claim, as required by The first part of sec
tiun 1875. 1t is not material 10 inquire
whe: her the plaintiff might by a proper
aft lavi, entitle himself to an attachment,
under any other clause of subdivision 2 +;
but the inquiry is simply, whether his al
tidavi, on file, is sufficient to bring his cast
within the true intent and meaning OF the
last clause.
The statute authorizing attachments,
though RENE lial, is in derogation OF the
common law, and ought not to be extended
by construction TO C lscs not included with
in its terms. Under the clause in ques-
ton, the applicant on comp wing with the
other conditions of the sa ute, is entitle |
to the warrant on his oath thlt he is afraid
of losing his debt. He is not bounl to
stae any facts or circumstances, any
grounds or reasons for his fear, but >imp' v
safe or condition O. his own mind, how
ever, c.pricious it my be, which en-
r,rely be disprovel, and for swearing Ia
(which, he could seldom il ever he couvic-
teiof perjury. 1t rests pretty much with
his own conscience whether he will have
all attachment issued or not. There is
little or no obstacle in the way, except
whit his conscience affords. Process 0!