
    George Kirk v. W. H. Whitaker.
    Error to the District Court of Wood county.
    This case presents the same auestion as Sturdevant v. Tuttle.
    
    
      James Murray, for plaintiff in error:
    The attachment was authorized by the express letter of the law.
    We know that prior to the adoption of the code no attachment could have been issued in an action sounding in tort; for the reason that the right to issue the writ was, by law, expressly limited to the ease of non-resident, absconding, etc., “ debtors.”
    
    The present law does not use the term “ debtor ” at all; on the contrary, it uses, in place thereof, the term “ defendant
    
    It only uses the term “ creditor ” in the first, fifth, sixth, and eighth sections, and then only in reference to an absconding defendant, or one having removed, or assigned, or being about to remove or assign his property, etc., or to convert it into money with intent to defraud his creditors.
    The ninth section has no reference, as will be readily seen, to a case in which the relation of debtor and creditor exists between the parties to the suit. It does, however, apply to a case like the present, where one has been injured in his person by the unlawful and criminal act of another, and does permit the writ to issue in a case where, by civil action, he seeks to compel that other to discharge the obligation which he had thereby incurred.
    That it was the intention of the legislature, by this amendatory act, to extend the remedy by attachment, and that in no small degree is a proposition as undisputed as we suppose it to be indisputable. The court will observe that, by section 191, the plaintiff is entitled to a writ of attachment in a civil action, for the recovery of money, not of money only, not in actions ex contaetu, not in cases where the relations of debtor and creditor exist; but it is given in broad,, general terms, “ civil actions for the recovery of money.” What is there in the section to restrict its application ? Not one word. The law as it existed prior to this change had received a settled judicial construction. What need, then, of change so marked as this, in its phraseology, if no change was intended in the law
    It is said that great hardships may grow out of our construction of the law, if the court should sustain it. We are not aware that the court will make law on the theory of ab inconvenienti; but we apprehend no such danger as counsel on the other side seem to apprehend. Even if it were so, that would be a matter for consideration by the legislature and not for the courts. The plaintiff in attachment-must give- bond, with surety, to double the amount of his claim, and the defendant, even in a case where final judgment has been recovered against him, can sue and recover^ in case he has been injured by reason of the damages having been placed at an unnecessarily exorbitant, amount for the purposes of the attachment.
    - Men are very chary in giving bond to procure an order of arrest, or writ of attachment, to any very large amount. Even in the heat, excitement, and passion of the hour, the vision of prospective damages for wrong to person or property looms up like a mountain “to the fore.”
    In Goble v. Howard, 12 Ohio St. 165, the court say, “ that the code has extended that remedy, not only by embracing legal cases in which the remedy had not before been allowed, but also equitable actions brought to recover money”
    
    
      We quote from the same case language well worthy of consideration by the court: “We think the case comes within the letter and spirit of the code, and that we are not called on, and would not be at liberty, to limit the op-oration of the code by reference to former practice, or even by the inconvenience which might be pointed out as resulting from the applications of one of its provisions to a particular case.” See also Ward v. Thomas, 12 Ohio St. 158.
    The court will observe that since these decisions the words “ or criminally” have been inserted after “ fraudulently ” in this ninth subdivision of the section.
    This, of itself, would conclusively seem to imply the intention of the legislature to make some material change in -the law, even as it then stood, broad as that was in the way of remedy; and to authorize an order of arrest or writ of attachment in cases where a party, by his criminal act, had incurred an obligation to another.
    It is useless to say that, according to “ Drake, it has uniformly been held in the United States, that no attachment •can be issued in this class of causes, because that remedy is only allowed to creditors.” The legislature has an undoubted right to allow a remedy by attachment to any other class of parties plaintiff, as well as creditors. We might, by a strained construction, limit the words, “ fraudulently contracted the debt or incurred the obligation,” to cases arising -ex contractu, but how it can be done as to debts contracted or obligations incurred criminally, i. e., by reason of the perpetration of a criminal act, is beyond our ken ; nor, if ■so, what particular defect in the former law the legislature -could have intended to supply, or which particular mischief to remedy.
    
      C. K. Watson, Brown § Canary, and J. K. § J. M. Hord, for defendant in error:
    The addition of the words “or criminally” only authorize an attachment where, by larceny, burglary, receiving stolen goods, embezzlement, or some crime, an inj ury "involving the element of fraud has been committed against the plaintiff’s right in property; cases of injury to the person are not included.
    The reporter could find no brief for the defendant in-error. The above point appeared in substance in Mr. Tyler’s brief, as a quotation from the argument of opposing counsel.
    
      James JR. Tyler, in reply:
    In all cases involving a fraud as an ingredient of a crime, an attachment could issue as well before the amendment as after. If the construction contended for by the defendant, in error be correct, the amendment was idle work.
    The defendant below, by unlawfully assaulting and injuring the person of the plaintiff, incurred an obligation to pay the damages occasioned thereby and incurred that obligation criminally.
    
   By the Court.

This ease' is ruled by the decision rendered at the present term in the preceding case of Sturdevant v. Tuttle.

Judgment of the Common Pleas, discharging the attachment, reversed, and cause remanded for further proceedings.  