Evening journal., 1898-07-14
fExT.OF THE DECISION
Handed Down in a Case
Against Armour & Co.
1T Is AN IMPORTANT RULING
MEMBERS OF THE NEW CASTLE
COUNTY BAR WILL FIND IT IN
TERESTING READING, FOR II
CONTAINS NEW MATTER.

TERESrING READING, FOR 1r
CONTAINS NEW MATTER.
This is the text Of the decision
handed down by the Superior Court in
the case Of Hannah Smith VS.. Armour
& co.
This Is an application to the court
to award writ OF foreign attachment,
upon the return OF non est upon a sum-
b mons issued against the defendant ten
r days before the return thereof In an
action to recover damages for injuries
sustained by reason of the defendants
tort, in failing to provide safe place
for one OF defendants employees.
The question is whether foreign at
tachment win lie on mesne process, In
, cases sounding in tort.
The statute governing this subject Isl
, found In section 19, chapter lO4, page
7S5, Revised Code, and is as follows
"A writ OF foreign attachment may be-
issued against any person not an in
. habtant Of this state, after return toI
r a summons, or capias, issued and de-
! llvered to the sheriff, or coroner, ten
days before the return thereof, showing
that the defendant cannot be found,
and proof, satisfactory to the court. OF
u the cause of action; or upon affidavit
0 made by the plaintiff or some other
credible person, and fled with the pro-
q thonotary, that the defendant resides
out OF the state and Is justly indebted
to the said plaintiff, in sum exceeding
u fifty dollars
v If the case is within the statute, II is
admitted that the writ must be award
ed under the first clause, upon the re-
n turn of a writ of summons or capias
issued ten days before the return
thereof, showing that the defendant
cannot be found, and proof satisfactory
TO the court Of the cause Of action.
Ie II is claimed by the plaintiff, that
al upon such return, and proof to the
court Of reasonably fair prima faeie
-, cause Of action, that writ OF
foreign attachment should be awarded
even though il be for tort
he Il is eimpy a question OF the con
stuction Of our own statute.
The writ OF foreign attachment Il
based primarily upon the fact that thu
he defendant resides out Of the state. IL
IN entitle the plaintiff therefore to tn
as said writ, such non residence must ap
pear.
The statute provides two methods b.
which this fact may be shown, prim
en- facle, as a foundation for the awardin
g- OF the writ; first, by the return TO
lat writ Of summons or capias which dif
no closes on it's face that the defendar
- cannot be found in the jurisdiction
" second. by the affidavit OF the plainti
OF or some credible person, as to Oh
lst fact OF such non residence But ne
Iat ther such return, nor affidavit, is con
mt elusive as to non residence, which
contradicted, must be proved in eithe
case, before judgment can be had. II
Jul manifest, therefore, that the return o
the writ in the one case, and the an
ed davit in the other, only go to make
prima facie case Of non residenc
~. which is a condition precedent to II
w awarding OF the writ.
Where affidavit is made, 1t must ais
ing appear that the defendant is justly II
debted to the plaintiff; on the retur
OF the writ, proof satisfactory to Il
court Of the cause OF action, must
made. Ii is contended that under Il
last clause, actions sounding In dan
ages in tort may be included.
far If this clause stood alone, the wor'
,ev cause Of action. would embrace actor
in tort. bat they must be constru'
with all the rest Of the statute.
Wherever in the statute the subje
ere matter for which It is a remedy Is e
pressly referred to, it is uniform
designated as a debt or indebtedness
asa and the actors are spoken of as ore
~ itor and debtor. The statute thereto
in its express terms, seems TO be bas
Vor upon the existence Of a subsisting !
OF debtedness as the foundation OF 4
right to the writ.
or Il must be borne in mind that this
N " not a common law remedy. II is pun
ly the creature of the statute, and h
been quite uniformly viewed as a VI
uai lent proceeding by which the proper
OF the defendant is taken and selz
M >, upon, before the claim is judicially
=, termined by a competent court Of la
q" and has therefore been uniform
strictly construed. Vogle VS.. The N
Y IT Grenada, etc. Co., 1 Houst, q
ks Pennsylvania Steel Co. vs.. r. r. Co.
Houst., SIS; and the case Of the \
tional Bank vs.. Furtick Tin the Coz
Of Errors and Appeals.)
ilor We have been unable to find s
and gle case where actions in tort hs
his been held 10 be within the foreign
tachment statute, unless the statute
d pressly so provided. This is the res
Of all the cases.
aVol Under similar statutes in most OF
T. states the courts have held, that
low, remedy is confined to actions ex g
The tractu, and many hold that 1t Will
one awarded only for liquidated damae
Drake on Attachment, section lO,z
au- 3 Am. and Eng. Ency. Law, 1884,
mere 1911; Porter VS.. Hildebrand, IA Pa.
l29; Warwick vs.. Chase % Nd, l
Jeffrys VS.. Woolley, 10 n. j. Law, ]
Chattick We. Marsh, p N. j. Law I
and Stanley VS.. Ogden, Root CCt,)' Z
Griswold VS.. Sharpe, Gala, Il; II
cave VS.. Beach, 9 Pinney (Wis), 8.
While we are not prepared TO
that the cause of action must De
Inundated demand. we are clearly
n he the opinion that foreign attachm
will not lie under our statute 1or