Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1898-07-21
4. Smith VS.. ARMOUR & Co.
An Important Decision Handed
Down by Chief Justice Lore.
A WRIT OF FOREIGN ATTACHMENT
Interpretation Of the State Law
on the Subject.


Sounding In Tort. u
On Juns 18th, in.the Superior Court,
Chief Justice Lore announced that the
court had refused to award the writ OF
foreign attachment IN the case Of Han
nah Smith, widow OF James I. Smith,
VS.. Armour 4 Co., William S. Hilles
for the plaintiff and II. II. Ward for
the defendants and yesterday week be
formulated his decision which Is as
This is an application to the court
to award a writ of forsign attachment,
upon the return of nor est upon sum-
mons issued against the defendant ten
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 ia whether foreign at
tschment will, lie on musne process in
cases sounding in tort
The statute governing this subject is
found in section 10, chapter 104. page
1856, Revised Code. and ia as follows:
"A writ of foreign attachment may be
issued againet any person not an in
habitant of this State after a return to
. summons or capias issued and deliv-
. cred to the sheriff or coroner ten days
before the return hereof, showing that
8 the defendant cannot be found and
proof satisfactory to the court of the
cause Of action; or upon affidavit made
by tie plaintiff or some other credible
person and fled with the .prothonutary
that the defendant resides out Of the
State and is justly indebted to the said
plaintiff in sum excesiing fifty dol.
lars" s,.t
II the case within the statute it ia
admitted that the writ must DO awarded
under the first clause, upon the return
of writ OF summons or capias issued
ton days before the return thereof,
, showing that the defendant cannot be
found, and proof satisfactory to the
court of the cause of action.
1t is claimed by the plaintiff, that
upon such return, aud proof to the
court Of reasonably fair prims facis
cause OF action, that writ of foreign
attachment should be awarded, even
though it be for tort. II ia simply a
question Of the construction Of our own
statute. ...a....
The writ of foreign attachment ia
based primarily upon the fast that the
defendant resides out of the State. To
entitle tha plaintiff therefore to the
said writ, such non residence must sp-
pear.
The statute provides two methods BY
which this fact may he shown, prims
facie, as foundation for the awarding
of the writ; first, by the return to .
writ of summons or capias, which dis
oluses on Its face that tho defendant
cannot be found in the Jurisdiction
second. by the atiidayit of the plaintiff
or some credible person, as to the fact
OF such non residence. But neither
such return, nor affidavit, ia conclu
sive as to non residence, which il con.
tradicted m ust he proved in either case
before judgment can be had. 1t 1.
manifest, therefore, that the return OF
the writ in the one case, and th,
affidavit in this other, anly 20 to max,
q prima fRcie case of non residence
which is condition prenedsnt to th,
awarding OF the writ.
Where affidavit is made, II must als,
appear that the defendant is Justly in
dsbtsd to the plaintiff: on the return
OF the writ. proof satisfactory TO tn,
court of the cause of action must b.
made. II 10 commended that under th
last clause, actions sounding ! in dam
: agesin tort may be included. "
II this clause stood alone, ths word
cause Of action would embrace action
in tort, but they must be construe,
with all the rest of the statute.
Wherever in the statute the subjec
matter for which 1t is remedy is OK
rressly referred to. it is uniforml
designatsd ~ q debt or indebtedness
and the actors are spoken Of as credito
aud debtor. The statute therefore /
Its express terms, seems TO be base
upon the existence OF suhsistine in
debtednoss as the foundation of til
right TO the writ
1t must be borne in mind that thi
is nut common law remedy. Ii
purely the creature OF the statute, an
has been quite uniformly viewed az
violent proceeding, by which the pror
erty Of the defendant is taken an
seized upon, before the claim 10 Judi
tally determined by O competent coul
OF law; and has therefore been un
formly strictly construed. Vogle vi
Tho New Grenada, &C., Co.. Houst
29a; Pennsylvania Stsel Co. va. r.
Co., Houst., SIS; and the case of Il
National Bank vs.. Furtick lin ii
Court of Errors and Appealsj.
We have been unable to find sing
case, where actionain tort have bee
held to be within this foreign attacl
meut statute, unless the statute O.
prsssly 80 provided. This is the r
suit Of all the cases.
Under similar statutes In most of II
States the courts have held, that Il
remedy is confined To actions ex col
tractu, and many hold that it will
dAd Ael A. n