Evening star. [volume] (Washington, D.C.) 1854-1972, 1875-08-23
THE 0TTKAN ATTACHMENT CASE.
Judge Wylie ewnulcs he Haii5G 70 Cash.


Wilson, representing the government, AMI
Mr.. Elliot representing Ottman, Mrs. OFT
man. and one or two friends and the usual
number of members OF the bar.
OPINION or THE COURT.
The motion 10 crash, as follows: An acton
in assumpsit was brought IN thlS case TO re-
cover from the defendant the sum of
ticulars, the defendant "unlawfdlly" took
from the office OF the Treasurer of the United
States on the ID OF June, 1915. The record
contains no averment from watch the court
could be judiclally informed, that the
money, If taken, was taken with feloniOuS
intent. We have no Judicial knowledge that
the government has lhstit-Sea tny ..ini lal
prose cUt!On tor the act 81 The defendant, or
that it even charges him with a criminal
PurrOSe IN ahStl.scting the money. On the
face OF the decla ration the defendant is
charged merely with having Obtained the
plaintiffs money uLlawiully, Out without
the Grim nal intent which s &c cesSary 10
Constitute the crime Of larceny. IA coz sid
eIIng the present mot o. &c are not allowed
u know any hing more IL regard - tie Csc
thSn al PEARS IL Llils very record. FOT any
thing which there appears the defendant
tlai Il was EIs Owl property, for IL would
have been EunlGWL.I even IL Ina. ca a
Stiil il is alleged that the taking was an
l.WIll," and on th.s grOuUG the 'CW impress
UTon the defel daft IN obligation - T lore
the money thus obtained, and thence !.apiie5
promise on his qart 20 restore the Il IN J.
mere are numerous cases Di Tort OF wrong
WI CV4AS out OF when tie ~ wlil Imply q
prom 'Se and sustain IN act. on IN form cr
rfH'sHt'U Nor VIII the courts ~ such cases
permit the defendant 20 Prov that ais act
was merely tCrt.OuS or tfat he made 10 Sucn
promise as that Laid in the Plaintiffs Gecia-
ratlCT- for 20 man Is allowed To take aivan-
taS6 OF his own wrOEG. IL was held in Mad
den aet. kempteT, Comp. =, that money
which had been gotten II BAD TAI III and By
means Of deceit GHd representation li git
he recovered from the defendant in an action
EFr .sF .fF.HF fF.sHgF
Blackstone says that tGis form Of action is
a very extensive aud beneficial remedy. an
TbcSbic - almost every case whore person
E2S T6cSlN 81 nancy IDr which eJ UTfJ q bona
he OC ght 10 refund. IL Hin dgt. Davis, > y.
Il. 4.CP.. 5-ti. y took the goods of l. without
license, ana converted them TO ais own use,
fOT V lch an action Ot aSsumpSi. was brOEgtt
~ Il. and Il was he'll by the court that the
tot might be waived and assumpSit ma n
taiLCt :Or the value or the gODlS taken,
although u was agreed Ia The statement of
the case made by counsel that there was no
contract And H. Jones HEt. HOar. ) Pick. r.
1-5- Mr. On i. Parker said -" The whole
eNtert of the doctrine as gathered from the
bCcRS seems 10 he that one whose goods have
been taken from Eim or detained unldw-
fully, whereby lie has a right 10 an
action o! tresTasS OT uOver, may, If
the Wrong dOer sell the goods and receive
the money waive The tort affirm the
- &c, auG have al action fOI money had aud
received IOr the proceeds"
Ia tie present instance, the property
charged TO have been Unlaw.GlIy daeu 3 ,
TIE defendant was money already.
There ARE also cas-. : IL; which b. has been
CeCiCej that a party In the occupation Of
laid may lie treated either as trsspaeseT,
or sued on an implied promise IL pay rent,
at tie election q TIE owner Curtis AIT.
Treat ii Maine r., 52j. SO II a party Ssduce
away aud EarbOr an apprentice, the master
may sue such person in ;tSSuInpSit for the
work and labor OF the apprentice Lightly
art. VI. and S. 1911.
II IS true that ~ common law there could
te 70 restitution &! goods upon an iEdict-
UeDt, for the reason that Indictment is q
prosecution on behalf OF The crown, and
solely for The public advantage; but when
That was the law y was the practice of the
courts hit TO Indictment should he preferred
against the offender until after the time had
expired within which the private party
v those goods had been stolen was allowed 10
prosecute his private suit Tor the recovery of
his property by means of appeal; Inst. 2i2,
4 Ri. Com, 362. Now, although this prOceei-
ing Of appeal was never introduced in p!-ic-
tee here; and lis place has been supplied by
another form of proceeding in England, yet
We see from this that at the common law the
party whose goods had been stolen was not
Oh'is ed TO stand belpIessly and see his pri-
Gcains; the pubic.
] think, therefore, that the piaIniIf in this
case may maintain its acton of aSsumpslt
10 recover the money dniaWfUlly taken from
its treasury by the defendant, as alleged IN
the declaration. II follows that we may r.
gard the cause Of action aS OF the nature Of "A
contemplation o. ~" law. Certainly the
United States I'm this instance, If the fact5
aV6TI6d Ia the declaration be tTue, must Je
regar.ei as q crct.;tOrOf the defendant. See
bra ke on attachments sec. ~. citing the law
q iCtiOTarfes OF both BUIrin and Bowler for
The DC aiming Of the Term CREDITOR We LOOK
70 the plaintiffs declaration to ascertain his
cause OF action. ard % no OtnCr quarter. 10
The present case the declaration sets out that
ne IrOEey in question was taken from the
United States Treasury BY tho defendant I'M
-.
amour: so taken. he did promise to repay II.
The cause Of action Is Therefore e. c0atrGcta
lOr The purposes 90 TINS occasion.
The next point for cOuS!deTat ton IS as 10
the SUficiency OF the afifdavits under which
the attachment IN ibis cause was ieS1ei.
The motion Ia quasi the Indictment rests
upon the following three grounds: / That
the afhdaylts on which said attachment Is
sued are not in substance sufficient under the
statute in suCn case made and provided
Z. That the statements contained in said
afiidavits as the ground OF said attachment
are not true in point Of fact. 3. That the
grounds Upon which said sfiitavjtE are based
are not within the statute aforesaid.
Tie LIST and 81 of these reaOnS are sub
Sfantia'ly identical and although objection
able by reason OF their generality and vague
reSS. VIII be considered in the light OF the
arguments made IN their support by the
learned counsel for the defendant. The sec
OAu IS rot cow 20 TIE examined, for the req
son that /; rests DpOn an assertion of fact
whose accuracy has not been "a veSti gated
ny the court, and cannot ne except after
three day notice given the other side. and
ID method u BE prescribed thereafter ny
the court.
At the argument the counsel fOr tha defen
daut eudeavOred 70 sustain their motion On
three grounds Tho first Of these grounds
was that attachment would rot lie where
lie cause Of aCtiOu vas f1f tori, ant tE5f
the cause Of action In the present case was OF
that ma IRE.
We have already seen that, in every
ease, IRE nature Of the cause OF action
can b aScertairet only from Inspection
OF The declaration. IN the present case
fre caUSe Of action declared upon by the
Plaintiffs = q promise made by me defend
ants AMI its breach. The form ~ that pre-
ScriheJ by our rules, ana is as condensed az
POSSIBLE. but hes always been held TO be sui
nClent. The bin Of particulars appended to
the dec iSr2ti0n shows that the money IN
question was ohta iueC ny TIE defendant ''un-
lawfully but the plaintiff was a liberty.
rs we have shown, 70 waive tie tort, anu sue
IN sseumpslt.
The next ground for Tire psOtinn urged
at the argument was that the auxiliary
affidavit OF Mr.. \. c. Richards, IN support OF
hat made by the attorney for the United
states, was in these words; That the
grounds upon which the plaintiff bases the
Aforesaid AFFIDAVIT are those stated therein,
and IA The declaration, and that the plaintiff
has Just right tC recover against the de-
PENDANT. rs G1ftdrt re7rfV be{ieUeS, The money
claimed IN the ueciara lion, FOR the cTyfse