
    Bula Sturdevant v. Harmon P. Tuttle.
    An attachment will lie in a civil action to recover unliquidated damages for assault and battery, under section 191 of the code of civil procedure, as amended February 16, 1865, which provides, among other grounds, that such process may issue when the defendant has “fraudulently or criminally contracted the debt, or incurred the obligation on which suit is about to be, or has been, brought.”
    Error to the Common Pleas of Ashtabuia county, reserved in the District Court.
    In May, 1869, the plaintiff brought his action against the defendant to recover damages for an alleged unlawful assault committed, and personal injuries inflicted on the former by the latter; and at the same time procured an attachment to issue and be levied in said action on the property of the defendant, on the sole ground that the liability or obligation sued on had been criminally incurred. The affidavit for attachment sets forth the facts with particularity.
    A motion by defendant to discharge this attachment having been sustained by the Common Pleas, and the ruling of the court duly excepted to, the question raised, was carried on error into the District Court, and was therein reserved for decision here.
    
      Lee § Kellogg, for plaintiff in error:
    The determination of this case depends upon the construction that shall be given to the ninth paragraph or subdivision of section 191 of the code, as amended February 18,1865 (S. &. 8. 550), which, so far as we are advised, has never been authoritatively construed by the court.
    The case of the Merchants Bank of Cleveland v. The Ohio L. and T. Co., Disney, 469, is relied upon by the defendant in error as containing the law of the case; but, while we concede the great ability of Judge Gholson as a jurist, we submit that, in the decision of that case, he gave better evidence of his ability to avoid and ignore the intent and purpose of the legislature, expressed in clear, concise, and unambiguous language, than of his strength as a jurist.
    We ask the court to give the statute referred to, a construction upon which the profession may rely, believing, as we do, that if the purpose and intent of the legislature, in the enactment of the law, shall be sought for and carried out, the judgment of the Common Pleas will be reversed.
    
      S. A. Northway, for defendant in error:
    What the defendant claims is, that the statute gave the plaintiff no right to an order of attachment; the addition of the words “ or criminally,” to the original statute, did . not enlarge or restrict the term “ debt ” or “ obligation*” It is the same kind of “debt” or “obligation” which must be “ criminally ” contracted ” or “ incurred,” that, before the amendment, must have been “ fraudulently ” contracted or incurred. ■ It certainly can not be claimed by the plaintiff’s counsel that any “ debt,” in the sense in which the term is used in the statute, was contracted by the defendant’s assaulting and beati ng the plaintiff.
    But it is claimed that the term “obligation” is broad enough to include the claim of the plaintiff
    If the term “ obligation ” is not enlarged by the addition to the original statute of the words “ or criminally,” only the manner of incurring it, then it would seem to follow that the “ obligation ” is such that under other circumstances it may be “ fraudulently ” incurred. Does not the expression “ fraudulently incurring an obligation,” imply something in the nature of a contract? Upon this point see the opinion of Judge Gholson in Disney’s Reports, 469, et seq.
    
    Can it be that the statute is so broad that for every action for assault and battery, or where any crime has been perpetrated, the plaintiff may bring his action for such damages as he may name in the petition, and then tie up by attachment all the defendant’s property, on the ground that, the “obligation was criminally incurred?”
    Will our courts hold that, by the. addition of the words “ or criminally,” the term “ obligation,” which before such addition is used only in a sense as implying some contract or agreement, has become so enlarged as to cover all cases where a liability has been incurred on the part of one person toward another by reason of the perpetration of some-crime ?
   West, J.

Section 191 of the code of civil procedure,, as amended February 16, 1865 (S. & S. 550), provides, among other grounds, that an attachment may issue “ in a. civil action for the recovery of money,” when the defend- and has “ fraudulently or criminally contracted the debt or incurred the obligation for which suit is about to be or has-¡been brought.” This record presents the single question, whether the liability on which the action was founded is an obligation criminally incurred within the meaning of this statute.

It has been supposed that the import of the terms “ debt” and “ obligation,” necessarily restricts the operation of the statute to causes originating in contract; and authorities are cited to the effect that attachment will not lie in an action to recover unliquidated damages for a cause not thus originating. The Merchants Bank of Cleveland v. Ohio Life Ins. and Trust Co., 1 Disney’s Superior Court Rep. 469; Drake on Attachment, sec. 10, and cases therein cited. Without assuming to determine what rule obtains in causes not having a contract origin, in which the element of criminality is wanting, we are clear in the opinion that in causes where this element is present, the term “ obligation,” in the •statutory sense employed, is equivalent to liability.

It is possible that the word “fraudulently,” standing .alone, as it did, in the original act, confined its operation to causes sounding in contract, as the term implies confidence .and deception. But fraudulently and criminally are neither synonymous nor convertible. There are liabilities, in the ■origin of which the elements of both fraud and criminality are present, as in case of obtaining property by false pretense. But the ingredient of criminality may be pre'sent in many instances without that of fraud proper, as in the case of larceny, arson, libel, injury to person, and the like.

Unless, therefore, the amendatory act shall be held meaningless, it must be construed to embrace this latter class of •causes, and we are constrained to accord it this construction.

The supposed hardships which, it is suggested, may result from this, by the opportunity it affords malevolence or exasperation to tie up excessive amounts of property, should be the ground of appeal to the legislative rather than to the judicial power. We can administer the law only as we find it. Possibly some limitation should be imposed •on the power to abuse the process, but to us no reason is apparent why a cause originating in crime should not be dealt with as harshly as one springing from fraud.

The judgment of the Common Pleas, discharging the attachment, will be reversed, and the cause remanded for further procedings.  