
    
      HUNT vs. NORRIS & AL.
    
    East’n District.
    
      Dec. 1816.
    A shipper, sueing the master and owners of a vessel for goods lost thro' their neglect, may attach their property.
    Appeal from the court of the first district.
    The plaintiff and appellant brought this action against the master and owners of the steam boat Vesuvius, to recover the value of goods by him shipped on board of her, to be safely carried from New-Orleans to Natchez, which he alleged to have been lost and destroyed, by the negligence and improper conduct of the defendants.
    On an affidavit that the defendants reside out of the state, the plaintiff prayed and obtained an attachment, which was levied on their goods, in pursuance of the acts of legislature of the years 1805 and 1807.
    
      On the motion of the defendants, the attachment was dissolved and the plaintiff appealed.
    
      Livingston for the defendants.
    The district court was correct in dissolving the attachment. The action arose ex delicto. Damages only can therefore be recovered and the plaintiffs claim could only ripen into a debt, by their being assessed in an action.
    The act of 1805, c. 26, § 12, authorises attachment, in these actions alone in which the recovery of a debt is sought. Debt is a technical word, descriptive of the claim of a determinate sum of money, due on an agreement or contract, 3 Blackst. Comm. 154. Here the claim is precarious, uncertain and unliquidated.
    It is true that the act of 1807, c. 1, § 21, describes the defendant, in a suit to be commenced by attachment, by the appellation of debtor, but this act is confined to the practice of parish courts.
    By the English law special bail would not be allowed in the present case: the plaintiff, even if he had right to sue for a claim arising ex contractu, having made his electiou, by a demand of damages for a tort.
    
    
      Ellery, for the plaintiff.
    We contend, that the word debt, in our statutes of 1805, c. 26. and 1807, c.1, is to be taken in its usual and popular 
      signification, extending to all cases ex contractu, where the demand can be ascertained by the oath of the plaintiff, not in the technical sense, required by the common law of England, to support the action of debt or that of indebitatus assumpset.
    
    2. The present demand falls under this popular signification of the word debt, and entitles the plaintiff to the process of attachment.
    I. The above interpretation of the word debt is a reasonable one: 1 because such a remedy as by attachment is necessary, and no good reason can be shown against it.
    2. This mode of proceeding is less injurious than a demand of bail: and it is not to be supposed that the legislature intended to deny the one, where it allowed the other, and would protect the property of a debtor from attachment, where it subjected his person to arrest.
    3. Otherwise a large class of cases, and those of frequent occurrences, would be wholly excluded from any remedy, without any good reason for the exclusion.
    4. A narrower construction would render void that clause in the affidavit, required from the plaintiff, in order to hold the defendant to bail, viz. “that the plaintiff does not, as far as the "deponent knows or believes, possess, within "the territory, sufficient property, if attached, to "satisfy the judgment the petitioner expects to "obtain.” 1805, c. 26, § 12, and 1807, c. 1, § 21. The above clause, an important ingredient, in the plaintiff’s affidavit, and without which the defendant cannot be held to bail, inserted in both acts, distinctly and unanswerably shews that the property of the defendant must be first attached, before his person can be arrested, and if he possess that property, no order to hold him to bail can be obtained. An attachment then is evidently, by our statutes, meant to issue when the defendant has property, in all those cases, where he might, if he has no property, be held to bail, viz. "whenever a petition is filed for the " recovery of any debt or damages, on note, "bond, contract, or open account, or for damages, "for injury to or detention of property.” 1805, c. 26, § 11, and 1807, c. 1, § 21. The consequences of a different construction, in cases like the present, would be always impunity to wealth and imprisonment to poverty. If the absconding or departing debtor have property to pay the debt, his person (according to our statutes)-cannot be arrested; neither (according to the construction contended for by the defendant’s counsel) can his property be attached. Therefore, under these circumstances, if the debtor have sufficient property to pay his debts, he may carry it off with impunity and set his creditors at defiance: and he can only be arrested for his debts, where he is unable to pay them. That no evil consequence or abuse can result, from the process of attachment, is also evident, as the law requires that "the plaintiff shall, previously to his obtaining such attachment, give bond, with good freehold security, in double the sum sworn to, for the use of the absent debtor or his representatives, conditioned for the payment of all such damages, as the defendant in attachment shall have suffered, in case it shall appear that said attachment was wrongfully said out.” 1807, c. 1, § 21, 1811, c. 8, § 2. The attached property may also be released, either by proving that the facts, on which the attachment was grounded, were not truly stated, or by giving to the sheriff a bond, with sufficient security, to defend the suit and abide by the judgment of the court. 1805, 27, § 12.
    5. This construction seems to result from the collation and comparison of our different statutes, upon the subjects of bail and attachment, whence it appears that attachment is intended to be always allowed, where bail can be exacted.
    We have four statutes, on the subject of bail and attachment: two in 1805, one in 1807, and one in 1811.
    The first act of 1805, c. 26, declares in what cases attachment may issue, viz. “whenever a petition shall be presented for the recovery of a debt.” The 12th section declares in what cases bail may he required, viz. “whenever a petition is filed for the recovery of any debt or damages on note, bond, contract, or open account; or for damages for injury to, or detention of, the property of the petitioner, &c.”
    The other act of 1805, c. 5, § 8, merely authorises the respective clerks, to receive the affidavits, and issue the process.
    In the 21st section of the act of 1807, ch. 1, the 12th section of the act of 1805, c. 26, is copied verbatim, and followed by a proviso, “that in all cases where an attachment is prayed for, against a debtor absent from the territory, &c.” as cited ante, p. 521.
    The act of 1811, c. 8, § 2, directs, inter alia, the indemnity bond, in cases of attachments, to be filed with the petition.
    It is to be remarked that, independently of the clause inserted, in the affidavit to hold to bail (which shews that an attachment must be resorted to, when there is sufficient property, instead of bail) by the act of 1805, (declaring in what cases an attachment shall issue, viz. “whenever a petition shall issue for the recovery of debt.”) the word debt, is used in the most indefinite sense, unaccompanied by any article, and that in the act of 1807, the words absent debtors are used.
    In the act of 1807, c. 1, the process of bail, and that of attachment are provided for in the same section, the 21st, the latter following the former and being contained in the proviso. The word debtor, there introduced, evidently means a debtor, under some of the cases enumerated in the beginning of the section, viz. debt, damages, or note, bond, contract, open account, or damages for injury done to, or detention of the property of the petitioner.
    
    This section is said to be applicable to the parish court only. It applies equally to the superior, as appears from the title and subject matter of the chapter—from the words one of the judges of the said court, in the beginning of the section: because, in the superior court alone was there a plurality of judges, and because the court last mentioned, and of course referred to, is the superior court.
    It is true the indemnity bond is required to be filed in the parish court. This is an apparent oversight in the wording of the law, which was corrected by the act of 1811, ch. 8, § 2, which requires it, to be filed with the petition.
    It is objected, that by the English law special bail would not be allowed, in the present case.
    Special bail would be allowed; and is allowed in all cases in which the damages are not precarious, orto be assessed ad libirum, by the jury. 3 Blackst. comm. 292: allowed in trover, 1 Wilson, 25 and 335, Catlin vs. Catlin, Emmerson vs. Hawkins, 2 East, 953, Imlay vs. Ellison, a case similar to the present, in which defendant was holden to special bail. The same practice and principles equally apply to the writ of the ne exeat regno.
    
    6. The statutes, under consideration, are remedial ones, and require a liberal and equitable construction.
    There appears to be a perfect harmony between our law and that of England, in the construction of statutes. The words of a law are generally to be understood, in their most known and usual signification, without attending so much to the niceties of grammar rules as to their general and particular use. Code civil, 9, art. 14. Where the words are dubious, their meaning oust be sought for, by examining the context, art. 16. Laws in pari materia must be construed with a reference to each other. Id. art. 16. The most universal and effectual way of discovering the true meaning of a law, when its expressions are dubious, is by considering the reasons and the spirit of it, or the cause, which induced the legislature to enact it. Id. 20. In civil matters, where there is no express law, the judge is bound to proceed and to decide according to equity. Id. art. 21. The judges cannot, in criminal matters, supply by construction, any thing omitted in the law, id. art. 22. See the common law principles, 1 Blackst. comm. 59, 62, Bacon’s Abr. 1st Amer. Edit. verbo Statutes, 384, 425, 386. Douglas, 30 2 Cranch, 386, 381, 4 Dallas, 30.
    It is the business of the judges so to construe the act, a remedial one, as to suppress the mischief and advance the remedy. 1 Blackst. comm. 87 Sergeant’s law of attachment, 49. What was in our statutes of attachment, the mischief complained of, and the remedy to be applied?
    7. The words debt and debtor, in our statutes, and in all civil law writers, are never used in a technical sense; but always in a general, enlarged signification. The debtor is liable for damages and interest. 1 Pothier, Obligations, n. 159, 160. The debtor is sometimes liable for damages and interest, altho’ extrinsic. Id. 161.
    
      8. A like construction has been put upon similar acts of attachment in different states, by respectable judges. See the opinion of judge Washington, Sergeant’s law of attachment, 43, 54.
    The words contracted and owing, in the law of attachment of Pennsylvania, construed by the same judge to embrace all demands arising ex contractu, and the measure of damages such as the plaintiff may aver by affidavit. Id. 52; But not for demands which arise ex delicto, or where special bail would not be required. See also the construction of the law of attachment of Connecticut, the words of which are absent or absconding debtors. Pollard & al. vs. Dwight, 4 Cranch, 421.
    II. The present claim is said not to arise ex contractu, but ex delicto, and by the English law must be declared upon in tort.
    
    Our practice has nothing in common with the English practice, and is not to be judged by its rules. We are bound by our act to disclose the cause of action, and conclude with a prayer for relief adapted to the circumstances of the case. We know nothing of special pleading, or the, different issues of the common law of England. But, supposing this to be a court of common law, the action is well brought, not upon a tort; but the breach of a contract. A concurrent remedy exists against bailees and the party may declare in assumpsit upon the contract, or in case upon the tort.
    The appellants argue that we have made our election and have declared in tort. We have declared in assumpsit. Our petition is almost literally copied, mutatis mutandis, from a declaration in assumpsit against the captain of a vessel. Chitty, 120.
    The gist of our action is the breach of contract, the non-delivery, not the wilful destruction of our goods. Assumpsit lies against bailees for neglect. 1 Chitty, 92.
    In Dale vs. Hall, an action against a shipmaster was held by Dennison, J. to be ex contractu, not ex delicto, 1 Wilson, 281.
    Lastly, the damages are said to be precarious, there is no standard to measure them by, and they are unascertained and unliquidated.
    The amount of damages is ascertained, by the oath of the party, and the case itself furnishes a certain measure, by which they can be assessed, by the court, as well as safely sworn to by the plaintiff, viz. the price of the articles themselves, which is all that is claimed of the defendant. This produce equal certainty of the sum due, as the case in Sergeant's law of attachment, viz. the difference between the value of one kind of goods and another: as in the cases of quantum meruit or quantum valebant.
    
    On the restricted construction, contended for, on the other side, what would become of the right of a party, suing on a protested bill of exchange, to demand against an absentee the amount of re-exchange, in addition to the amount of damages and interest fixed by law?
   Mathews, J.

delivered the opinion of the court. To ascertain whether the process of attachment be the just and lawful remedy, in cases like the present, we must resort to a fair and legal construction of the legislative acts, as being the principal foundation in our laws of such proceedings—In doing this, it is necessary to turn our attention more particularly, if not exclusively, to the act of 1805, which is the law from which our courts derive their authority to proceed against the property of non-residents. The statutes of 1807 and 1811 only require some additional steps to be taken by plaintiffs in attachment, without making any change in the principles of the first laws. It is now proper to remark that the statute, which is now about to be discussed, is among the earliest acts of legislation in this country, soon after it was acquired by the United States, and we believe was penned by persons, deriving their legal ideas from a knowlege of the English laws. A recurrence to general rules for the construction of laws, or the definition of legal terms, as found in common law authors, even if in any case it ought to be objected to, is fairly admissible for the present. These rules and definitions ought to be the same in every system of jurisprudence founded in common sense, and the common acceptation of words. Our statute of 1805 clearly and expressly authorises proceedings in rem, in cases of attachment, in a suit for the recovery of a debt due by a person residing out of the state. If we refer to authors on the common law of England to ascertain the legal acceptation of the word debt, in its most strict and technical meaning, it is perhaps limited to the idea of a determinate sum of money, due On an express agreement. 3 Blacks. 154. Yet, the action of debt is not confined to contracts for money alone. As expressed by the same writer, in the following page, “its form is sometimes in the de-"bet and detined, and sometimes in the detinet "only, as in an action for goods, for a horse, &c." Also, in Chitty on pleadings, it is stated that an action of debt lies in the debet for goods, as on a contract to deliver a quantity of malt, &c. Thus we see that, according to the authorities, the action of debt in the detinet is a legal remedy, on an express agreement to deliver any specific property; and the person, who for a lawful consideration promises to deliver to another a quantity of goods, specified in the agreement, ought to be considered the debtor of the latter for the things promised, and then these things constitute a debt. Nothing can be more evident than the truth of this position, when the obligation arises on an express contract. Is it less time, or well founded, when the contract is implied? We think not. Obligations, arising from implication of law, are equally binding with those, created by an express agreement. Whether the obligation of a common carrier to indemnify a person, who has entrusted him with goods, which are lost by the negligence of the former, be one growing out of an express or implied contract may be doubted: but, admitting its origin to be from implication, the indemnity due is not less a debt. In 2 Blacks. 464, where the author treats of the action of debt, it is stated that in a bailment, “if the bai-“lee loses or detains a sum of money bailed to "him, for a specific purpose, he becomes indebt"ed to the bailor, upon the same numerical sum "upon his implied contract.” Here we see a debt may be created by implication, in a contract of bailment, when the thing bailed is money. In express contracts, we have seen that a promise to deliver any property or goods, specified in the agreement, makes the promisor debtor to the promisee for these goods; and the things promised constitute a debt. The obligations arising from implied contracts are equally binding on the obligor as those arising from express contracts; therefore, the bailee of goods who loses or detains them improperly, becomes indebted to the bailor for those goods. If this conclusion be correct (of which we have no doubt) then the case cited, from Sergeant’s law of attachment, is completely applicable to the one now about to be decided. The words of the act of Pennsylvania, on which the decision alluded to is founded, do not embrace a greater Variety of contracts than our act of 1805. It is true that there an express contract existed, in Which the defendant in the attachment, bound himself to deliver teas of the first quality to be sold for the benefit of the plaintiff, in a market stipulated between the contracting parties, and if the teas should not prove of such a quality, he bound himself to make good the difference. On this agreement, the plaintiff having ascertained by his own oath the amount of the deficiency, the court supported the attachment. But we have already shewn, that no distinction ought to be made between an express and an implied contract, and do therefore conclude, that it may be properly and safely laid down as a general rule, that all obligations arising from contracts, either express or implied, either for the payment of money or the delivery of goods, create a debt on the part of the obligor, for Which an attachment may issue, whenever the amount may be fairly ascertained by the oath of the obligor.

In this view of the subject, we deem it unecessary to examine the reasoning of counsel drawn from the similarity betwixt bail as authorised by law and attachments.

If we turn to writers on the civil law, it is found that he is said to be a debtor, who owes reparation or damages for the non-performance of his contract. 1 Pothier on Obligations, n. 159.

The judge of the district court erred, we think, in considering the obligation of the defendants and appellees to indemnify the plaintiff and appellant for his loss, (if any exists) as arising ex delicto and not ex contractu; it is clearly one arising out of a contract of bailment, and which, in conformity with a proper acceptation of the word debt, authorises the plaintiff to have his attachment against the property of the defendants.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and that the cause be sent back to be tried on the merits, and that the parties be replaced in the situation in which they were before the judgment of the district court, dissolving the plaintiff’s attachment.  