
    J. B. Fellows & Co. v. T. C. Brown.
    Attachment: to what cases it applies. — The remedy by attachment does not extend to actions ex delicto.
    
    Error to the Circuit Court of Chickasaw county. Hon. Joel M. Acker, judge.
    
      Sale and Phelan, for plaintiffs in error.
    After the plaintiff had reformed and amended his whole pleading and process to suit himself, the defendant moved to quash the attachment, because it did not allege a ground of action upon which an attachment could issue. This point is of more importance to the defendant below than all the preceding, as it goes to the whole action; and, if sustained by the court, will dismiss the attachment. He asks the attention of the court to it.
    The affidavit in the attachment, as now amended, embodies the allegation of the new declaration, viz.: “This day,” &c., “who made oath that J. C. Fellows & Co. did deceive and defraud said Brown, by representing to him that they held against Gr. W. Ezell & Co., accounts, debts, &c., amounting to the sum of $517 80, and by such fraudulent representations induced him to give them a certain bay mare worth $800.” Does such an allegation furnish a ground for an attachment ? We say not. The facts here stated give an action on the case, for the fraudulent misrepresentations of an existing fact, whereby damage was sustained. The statute does not include such actions. It does not apply to actions ex delicto. So to construe it, would be to' extend it to all actions of tort for damages. The language of the law expressly includes such actions. It says : “ The remedy shall apply to all actions or demands founded upon any indebtedness ; or, for the recovery of damages, for the breach of any contract; or, actions founded on any penal statute.” Code, Art. 1, p. 372. An action on the case for fraud is none of these. Its very nature is based upon a denial of any “ contract” or “ indebtedness.” The fraud vitiates and annuls the contract which was induced by it. It goes for nought. No right is based upon its supposed existence. A wrong was perpetrated in attempting to create a contract, whereby damage was sustained. The attachment should have been quashed.
    
      Deavenport and Hill, for defendant in error,
    Filed no brief.
   Hakdy, J.,

delivered the opinion of the court.

This suit was commenced by attachment sued out by the defendant in error against the plaintiffs in error. Several exceptions were taken in the course-of the proceedings in the court below, to the rulings of the court, and are now assigned for error here. But we deem it necessary to consider only the assignment founded on the motion made by the defendants below, to quash the attachment after the affidavit was amended, and a new declaration was filed; which motion was overruled.

The original affidavit on which the attachment was issued,' stated that the defendants are justly indebted to the plaintiff in the sum of four hundred dollars, or thereabouts, and that he is informed and believes that the said J. B. Fellows & Co. are non-residents of this State, and that they fraudulently contracted the debt for which this attachment is sued out.” The original declaration filed, contained, two counts, one alleging that the plaintiff had sold the defendants a mare, in consideration of which they undertook and promised to deliver him good' and valid evidences of debt against' one Ezell & Co., amounting to'$417 80, but that they had refused to deliver the saíne; the other, upon a quantum valebat for the mare sold and delivered. After issue joined upon this declaration, and after the close of the evidence'on the trial, the plaintiff asked leave to strike out these two counts in the declaration, and to file a new count, setting forth that “the defendants did defraud and deceive the plaintiff by representing to him that they held against Gr. W. Ezell & Co. accounts, debts, &c., amounting to $517'80, and by such fraudulent representation, induced the plaintiff to give them a certain mare worth $300; and the plaintiff avers that the'defendants did not deliver accounts, debts, &c. to that amount, whereby plaintiff was greatly damaged, to wit, the sum of $517 80, and therefore sues.” This motion was granted against the defendant’s objection. The plaintiff then moved for leave to amend the original affidavit, by striking out the words “ are justly indebted to him in the sum of $400, or thereabouts,” and inserting “ committed a fraud upon him in the sale, by the said plaintiff, to said Fellows $ Qo., of a certain mare, to his damage four hundred dollars, or thereabouts which amendment was allowed, — the defendants excepting. The defendants then moved the court to quash the attachment, because, among other reasons, the nature of the action was changed from one in assumpsit, as it was when brought, to one on the case for deceit. This motion was overruled, and the defendants excepted.

It is now insisted that the cause of action as set forth in the amended affidavit and declaration, is not one for which attachment will lie, and that the attachment should have been quashed and the suit dismissed.

By the terms of the statute, the remedy by attachment is confined “to actions or demands, founded on any indebtedness, or for the recovery of damages for the breach of any contract, express or implied, and the actions founded on any penal statute.” Rev. Code, 372, Art. 1. Affidavit is required, by Art. 2, of “ the amount of the debt or demand.” From these provisions it appears to be plain that, except for the recovery of penalties under statutes, the remedy was intended to apply to matters ex contractu ; and there appears to be nothing in the statute, as there is nothing in the reason upon which the remedy is founded, to warrant its-application to actions ex delicto.

In this case, the amended affidavit shows no such “indebtedness” as the statute contemplates. The allegation of indebtedness, contained in the original affidavit, rvas stricken out and abandoned in the second, which merely alleged that the defendants “ had committed a fraud upon the plaintiff,” in relation to the sale of the mare, “ to his damage $400.” And the declaration proceeds upon the same idea, — that the defendants defrauded ■and deceived him by falsely representing that Ezell & Co. were indebted to them a specified amount, and thereby obtaining from him the mare, and stating the damage which he sustained in consequence of this fraud and deceit. There is nothing in all this savoring of contract, or seeking to recover for the breach of contract. It looks entirely to the recovery of dama.ges for the fraud, alleged both in the affidavit and in the declaration. Nor does the declaration set forth the fraud and deceit, and waiving the tort, seek a recovery in assumpsit. It sounds wholly in tort, and has no feature of an action in assumpsit.

We think, therefore, that the action was not maintainable upon this amended affidavit and declaration, and that the motion to quash should have been sustained. «■

The judgment is reversed, the attachment quashed, and the suit dismissed.  