Brownlow's Knoxville Whig, and rebel ventilator. [volume] (Knoxville, Tenn.) 1863-1866, 1865-10-18

AineSen, sua8e-aeiiyered the cpiuf"n - ,.-..sr (,
This lisa writ Of error, prosecuted y sas
error to reverse judgmep. f ssess y. 8.
taken By dsaelt in the oirsa Court y n'a' -. ~
1usa Trrr 1sss TIE necessary 70 BE noticed az
as follows =.
s,.~~ attachment, founded affidavit, which ~
,-s, that He" he plaintiff below sis advised an,
believes that he has good Of acton against the de
fpaant herein named in which he win be entitled
cover the sum Of I'VE thousand dolars for Which be ha
this day brought suit against the said Samuel C. swsn
in the Circuit Court o. Knox county He farther s''ssrf
that the defendant has absoonded, absconas' " "
couccais himself that the ordinary OF IA" cannot
be- served upon him, he therefore prsys that an ancary
attachment issue against The property oil defendant IN ao
Of his seis at law"
Tn, s.tsem.ut, foliow substantially the Ian ghge Of
the aaaa,;t Tho suumons and the first attachment is
med On the oil, Of September is6s and both to the
hands Of the Sheriff on the day. The summons
was returned Oh the 5th Of October following endorsed
..gearch male bit the dcfemdam 70 Dc fond IL hc
ous,yv Prior TO this, viz September 1eth 1865, the
attachment was returned. endorsed Levied this attach
meut on tract Of land" etc. An. alias adciary at
tacnucnt is,aed the oath Of April, 1865 which was
returned endorsed: Levied Watts Containing
Leather -one Bark MIL etc Afterwards 90 tho 2ssh
IF March 1855, pla.e snsillary attachment issued,
uhch camo to the hands Of the Sheriff the same day
and was also returned the day received, endorsed
Search made -no personal property be found in my
oeunty, levied ina, attachment tract u land etc
rbe deelara.ion although exceedingly inartibeiaIiy
Drawn is IN substantial conformity the requirements
Of the Code The damages laid $4,000, and claim
ed for falsely malic;ousy aud illegally arresting and
improning the defendant causing him 30 be mprif-
oned and imprisoning for two months No plea ap-
pear, have been fled appearance entered by the
defendant below.
Under this sf facts the june Term Of the Cir
cult Court Of Kncx county 1865 Judgment by default
was regularly taken against the plaintiff in error, and,
therefore, writ Of enquiry awarded, and a jury
eDpanDeed enquire Of the damages, who by their YER
diet asscssed the same s5,ooe for which Judgment
tnal entered
Various questions presented argument and press
"a With zeal and ability both sides But this case, as
rerhap, some otbers Of the same csss must upon
the construction which is to be given the attachment
AVE n thcy nov exist in the State Hfff
The question that meets At the very threshold Of
ihis investigation is the that be given to The
aBcary attachments issued and levied the property
u the defendant below. Were aeB sufficient utter the
hrg tfiag asPdrfg before The court ,ridod pesoa,a
scrcicsf
The attachment laws they existed, prior to the ra-
6cation Of the Amendments the Consultation, on the
72d day Of February, 1863 did authorize the sucng
cut of an attachment original process for any
cause Of action. deicto. In such cases under the
Act Of sl3 chapter 49, subsidiary attachment be
esortcd TO auxiliary to action for tort as well
upon and the Code, although it has
re-enacted the Act Of 1885, has abridged in eases
Of attachment of the rg conferred by that Sta
By the terms OF the Code 1862, this process may
he resored to Gin aid of suit already brought and liz
remedial operation and effect is rather tended than re-
trictsd under The Act Of 1913, as veil ,,nder the
provisions Of the Code csuld only be reorted to- when
the action brought the ordinary mode and lis eff
feet not to bring the party before the court but
ate lion on tho defendants property and hold il bound
for the satisfaction Of the recovery
In such cases IL can only lawfully issue subsidiary
ancay attachments this Court has declared when
appcars 10 the affidavit, and Is alleged in the attach
nent that suit had been commenced by the plsintif
against the defendant the nature thereof the tribunal in
which il is pending the amount Of damages laid in the
action and that the Of seton II us" Thompson
Csrper, IL Hum. SAL Morris We. Davis snsc1,
4s3
These necessary prerequisites TO the lawful issu-
OF auxiliary attachment in aid Of suit law
and their presence In the affidavit and attachment
.utute good title TO real or personal estate sold under
til.
But in causes Of action e. coatraelu whether the debt
demand is due not, if the plaintiff resides in the
STATE attachment 81 original process viii iie.-
But Il the debtor defendant resides Of the State
aud the doht demand - due, the remedy by IA
original attachment cannst be maintsined-Code 3455
and 3i5s Under these broad and comprehensive Sec
tons Of the Code, any creditor may have the uri 4
whether be is natural person or corporation; and if
there two more debtors he may commence his
ton against by summons and against the /
others by original attachment.-sms vs. Mcneil 10 /
Hum. 50o In all these fr debt demand, causes
Of action coatractp when the relation express inn
Piled Of debtor and credited exists attachment as an
original process viii lic proper levy and return, with
publication is sufficient 10 confer on the Court jurisdc
ton Of the Cause and authorize II TO proceed TO final
Judgment IL the defendant In Court by personal
service-Code 1921
In causes of action in form &c eontracte, where the
leading process Il attachment il is obvious that the
mean or tanclary attachment not contemplated.
Il would Be ii issued. wholly imperative. The original
attachment accompanies everything that possibly could
be effected by t. In such cases, IL is only effective
when the suit IL brought by summons and its obec and
purpose Is precisely the in of actions Of
ter when the suit aust Of necessity be brought BY sum
mons II is therefore apparent that the anclary attach
ment in actions, both in form cecoHtro9 and d.cto,
IL snbsidary process, not operative to bring
che party before the Court
Thus the Law stood unit. the ratification Of the amend
ments to the Contribution in 1865. The Schedule appen
ded 10 the Constitutional amendments effected most
material aad important change IN the attachment laws,
and introduced feature hitherto unknown TO the
Laws Of this State BY the 9Th Section, which by its
terms has the force and effect of gw, il is provided
among other things, that I'm all actions for tort
brought, which may hereafter bo brought IN the
Courts in this State, by attachment levied upon the
property Of the defendant the Court shah have power
70 proceed TO judgment aud collection Of the
upon contracts without personal service Of process upon
the defendant until the Legislature shall Git TO
change the law in such cases.
The language Of this part Of the schedule although
not explicit and apparently employed without clear
comprehension of tho existing state Of the attachment
laws Is nevertheless sufficient convey with reasonable
certainty the purpose Of its trainers The intention ap-
pears 10 have boon too fold:
Frst To center the right Of action, by original
attachment IN causes delico that then existed by
law, in causes es-coafactg.
Sscop3 To uphold and sustain such actions for orfs,
had already been in the ordinary mode, with
aucary attachments lawfully issued aud levied the
property Of the defendant Without such construction,
The words" oil actions for torts brought" would have
meaning This phrase when coupled, as by every
rule Of grammatical construction II be- with the
words following in the sentence"by attachment
levied upon tho property OF the defendant leaves but
little to doabt, that the intention of the Con.
,cntion, give TO the ancillary attachment, when law
fully rsucd and daily levied the property of the de-
endant in actions for then brought the operation
and effect 81 original attachment In actions in form
dcfo, other kind Of attachment, the law then
existed, could issue, and that eniy in smuta-
neOusly WITH after and consequently
other could be legally levied the property Of the
defendant This view of the meaning Of the schedule
susains the words" in all actions fer torS brought y
without which they utterly nugatoy. The construc
ton thus given. aware Is liberal one. but not
perhaps than il justified by the former adiu-
locations of this Court, and the plain requirements Of
The provisions OF the Code, S875 Runyan VS. Nor
gan, Hum. ele; Fisher Il Co, vs. Cummings, Z
Hum. 352.
Il proper, however, remark super
induced thaart Of the Schedule which gives the fnca.
attachment tile operation aud the eject Of original at
tachnsnt With the suits then brought ana such
practice now would be irregular and he encouraged
Applying THE construction Of the Schedule tho facts Of
this ea, We held that although the affidavit and the rceals
in the attachment strict conformity the rules laid