
    Charles Knox, plaintiff and appellant, vs. Stephen E. Mason, defendant and respondent.
    The Code of Procedure does not authorize an attachment, as a provisional remedy, in an action aginst a non-resident, for the taking and conversion of personal property in another state.
    (Before Robertson, Ch. J., and Harvest and McCunn, JJ.)
    Heard February 24, 1865;
    decided February —, 1865.
    This is an appeal from an order of Mr. Justice G-abvin, setting aside an attachment in this action against the property of Mason as a non-resident. The motion below was to vacate the attachment on two grounds, viz: 1st. Irregularity; the plaintiffs having failed to cause the affidavits on which attachment was granted to be filed in the county clerk’s office of Kew York.
    2d. The action is one in which by the Code an attachment cannot be granted.
    The attachment was granted August 5,1864. The defendant is a non-resident of this state. The attachment was granted on that ground. By the complaint it appears that the action is brought to recover the value of a lot of hub wood, wrongfully seized, taken and carried away, and converted in the state of Maryland, on the 29th July, 1864. .From the plaintiff’s, and also the defendant’s papers on this motion, it appears that the seizing, taking away and conversion of the plaintiff’s property complained of was the defendant’s taking judicial proceedings by attachment in Maryland, by virtue of which the property in question was seized and sold. It is for such seizure and sale the present plaintiff now sues and claims damages. The goods in question were attached as the property of one Nash. The present plaintiff now claims he owned them at that time.
    
      L. S. Chatfield, for the plaintiff, (appellant.)
    The question in this case is whether, under the Code, an attachment can be issued against a non-resident for the taking and conversion of personal property, in another state.
    1. An action can he maintained in this state for trespass de bonis committed in another state. (See 3 Caines, 266; 3 Burr. 1364; 1 Bay, 273; 2 John. 282; 9 id. 71.) If so, the remedy by attachment is allowed by the Code.
    2. Section 229 of the Code is as general in its terms as it well can he made, and any construction which should confine its operation to mere money demands Would do violence to its language, whereby a warrant of attachment is authorized to be issued whenever it shall appear by affidavit that a cause of action exists against the defendant, and it specifies the amount of the claim and the grounds thereof. A cause of action exists whenever one person has taken the property of another without right. The claim is the value of the property taken, and the grounds of the claim are that it has been thus taken. The legislature intended, by using this language, to apply this remedy in every case where a specific claim could he made, whether it was for money, or personal, or transitory property.
    
      3. Section 227 does not control 229. If it was intended to secure precisely the same remedy by the two sections, then it was superfluous to adopt section 229, for 227 had amply provided for money or contract demands. The adoption of section 229 shows that the legislature intended something more than it had already provided by section 227, and that “something more” was the extending of the remedy beyond -mere money demands. The title of the two sections is significant. The first is “property of foreign corporations, and of nonresident and concealed debtors may be attached.” And the title of section 229 is: “ In what cases warrant may be issued.” If no warrant could be issued except in the cases provided for by section 227, then the cases in which it might issue had already been specified, and the title and the whole of section 229 was supererogation. By section 227 it was intended to superadd this remedy when an action had actually been commenced for a money demand; while section 229 provides for the commencement of an action in this mode whenever a cause of action exists against the persons described in it. It has been held that this remedy is available in actions for the recovery of damages for the conversion of personal property. But Judge Hogeboom, in Gordon v. Gaffey, (11 Abb. 1,) has, seemingly, decided otherwise. The case did not present the question presented here, that, being an action of trespass to real estate, which is in itself local. But the vice of Judge Hogeboom’s reasoning is in the confounding of the two sections, and in supposing that they both referred to the same class or causes of action. It seems to me clear that they do not. Section 227 specifies “ an action for the recovery of the money,” while section 229 allows the remedy in any case “ where a cause of action exists”—a distinction as broad as language can make it.
    ■4. Section 231 is equally applicable to both sections. The sheriff shall keep the property “ to satisfy the plaintiff’s demand, and this must be stated in the complaint.” A. may have a demand against B. for property tabeen as well as for property sold, and the term demand, used as it is/ in its general sense, is descriptive of both. In Hernstein v. Matthewson, (5 How. Pr. 196,) the court took a view more consistent with the language and spirit of the Code, and held that an attachment might issue in cases of tort as well as of contract.
    5. In cases of non-residence, the Code presupposes an inability to obtain personal service, as also in those of absconding and concealed debtors. The attachment issues because the person of the defendant is beyond the jurisdiction of the court, and the usual remedies against residents cannot be applied. There is no rule which requires a resident plaintiff to seek the residence of a non-resident defendant to obtain his just rights when he can find the property of the defendant within his own jurisdiction. In Floyd v. Blake, (19 How. Pr. 542, 11 Abb. 349,) Justice James decided, in a very clear and well considered opinion, that an. attachment might be issued against a non-resident defendant in actions even of assault and battery. In Ward v. Begg, (18 Barb. 139,) the court holds that under the Code as it now stands, the proceeding by attachment is not confined to actions on contract or money demands.
    6. Notwithstanding there are two cases which hold a contrary doctrine, the strength of the authorities is that attachments may issue whenever a cause of action is shown to exist. It will be seen that in Hernstein v. Matthewson, although an attachment might issue whenever - there was a cause of action, Judge Edmonds held that it would be inoperative, because there were no means provided for bringing the party into court; and in consequence of this decision, section 135 of the Code was amended so as to allow the party to be brought in by publication. This amendment was made in 1858, and with a full view to the construction which had held that attachments might issue in cases of tort, as will be seen by the petition or letter of Dwight H. Olmstead, Esq. on whose application the amendment was made. We have, therefore, both a judicial and a legislative construction in favor of this remedy.
    7. If the defendant had appeared in Hernstein v. Matthewson, the- attachment would have been sustained. Here the defendant has appeared, put in bail and- answered; and is now too late to make this motion. The motion should have heen made (if at. all) while the property was held by the sheriff, when errors in practice could have been corrected ; and the stipulation does not obviate this objection, certainly not as to the answer.
    
    
      D. McMahon, for the defendant, respondent.
    I. The attachment was properly set aside, because the papers were not filed in proper time, viz. ten days, or at all.
    I. Section 229 of the Code provides, at its close, that it shall be the duty of the plaintiff procuring such warrant, within ten days after the issuing thereof, to cause ,the affidavits on which the same was granted to be filed in the office of the clerk of the county in which the action is to be tried.
    5. The terms of this section are so peremptory, being an amendment of 1860, that there is no doubt the legislature had some reason, not apparent to us, why they so positively required these affidavits to be filed. It is true that the omission to file the affidavits is not jurisdictional, yet the filing is so positively enjoined that the omission to do so is a positive irregularity, and vitiates the proceedings as much as the omission to file an undertaking or to have it approved. (See O’Donnell v. McMurn, 3 Abb. 391. Leffingwell v. Chave, 5 Bosw. 704. Newell v. Doran, 21 How. 427.)
    II. The court was right in setting aside the attachment, because the Code does not contemplate the allowance of an attachment in a case like the present, viz: In an action of trespass de bonis brought against a plaintiff in a judgment recovered and execution issued in another state, for property levied on by that judgment and execution in such other state ; for such a class of actions, if brought against a public officer in that state, is local.
    • 1. By the Code an action against a public officer or person specially appointed to execute his duties, for an act done by him in virtue of his office, or against a person who by his command, or in his aid, shall do any thing touching the duties of such officer, is local. (§ 124.) By section 125, actions to recover personal property distrained for any cause, are local. There is a good reason why courts of this state should not entertain jurisdiction of this case, viz: of an action of trespass brought against a plaintiff in an attachment sued out of the courts of another state, on which attachment a levy is made on the property of another in such state ; the whole transaction taking place out of this state ; the property injured situate out of this state ; the injury, which is forcible, accruing out of this state, and the process whence the injury arises being the process and judicial proceedings of the courts of another state. The. case of Molony v. Dows, (8 Abb. Pr. 316,) and Mr. O’Conor’s points therein, seem conclusive against that jurisdiction.
    2. The case of Way v. The Keyport Steamboat Co., (16 Abb. Pr. 320, n.) is in analogy with this case. If such a jurisdiction is allowed, then the direct result will be that full faith and credit will not be given in one state to the records and judgments of the courts of another state ; for to protect the present defendant he must justify, as he has done under, the attachment proceedings of Virginia. There is no pretense, nor can there be any, that the present plaintiff could not have tried his right of property- under the present defendant's attachment proceeding in Virginia. To allow him now to try his right of property in this action here, will be in effect allowing him to ignore and set aside by a collateral action the solemn judgment of Virginia.
    3. It also drags into another tribunal, in a distant state, that which should have been tried and adjudicated on the original attachment proceeding. Therein this case differs from those cited by the plaintiff's counsel in his brief. All of the cases referred to by him are cases of personal tort, which travels around, and dies with the person. In this connection' the court is referred to the case of McIvor v. McCabe, (16 Abb. Pr. 319,) which seems to conflict with the case of Molony v. Dows.
    
    III. Apart from the question whether this court will entertain jurisdiction of this cause of action, we urge that it had no right to grant the present • attachment. For the Code, section 227, only allows an attachment to he issued “ in an action for the recovery of money.”
    1. Section 229 allows the warrant to issue only “ whenever it appears by affidavit that a cause of action exists against such defendant,- specifying the amount of the .claim and the grounds thereof.” The phrases, “ a cause of action,” “ such defendant,” “ the amount of the claim,” “ the grounds thereof,” as used in section 229, have reference solely to the description of action and the description of defendant specified in section 227.
    2. “An action for the recovery of money ” is not an action of tort. An action of tort is one brought to recover “ damages.” The damages are in their nature uncertain, unliquidated ; may in some cases be “ punitory and vindictive,” in others merely compensatory ; so that though a party who brings an action of tort may be said, in one sense, to seek a “ recovery of money,” yet his action is not of the class of actions contemplated by sections 227 and 229. ¡No plaintiff who brings an action of tort to recover damages, in their nature uncertain, can specify by affidavit “ the amount of his claim and the grounds thereof.” If he does, his oath amounts only to the expression of his opinion or belief of the amount of his claim to relief. That, by the case of Ackroyd v. Acroyd, (11 Abb. Pr. 346,) is not enough. The court there say “ That an arbitrary-statement or opinion that there is a specific sum due does not suffice. The facts must be stated which will show that a cause of action exists against the defendant, and the amount of the claim must be specified, and the grounds thereof.” (Code, § 229.) Therein it is also distinctly held that “ under section 229 of the Code, which requires as a foundation for a warrant of attachment that it shall appear by affidavit that a cause of action exists against the defendant, specifying the amount of the claim and the grounds thereof. If the action is for an accounting, and the complaint shows that the plaintiff is unable to state the amount due him, his affidavit that there is a certain sum due him is not enough to authorize an attachment. If the plaintiff shows that he does not, and cannot know, whether any thing is due him, his statement of his opinion as to the amount is not enough. On this phrase, “ for the recovery of money,” I refer to Tuttle v. Smih, (6 Abb. Pr. 329.)
    3. It would be inaugurating a new remedy for a plaintiff in an action of tort to give him the privilege of issuing an attachment against the property of the defendant, because of that defendant being about to dispose, &c. or of his having disposed of his property with intent to defraud his creditors. It would be turning a plaintiff in a tortious action into a “ creditor,” from the mere fact of bringing a tortious action.
    4. This point, however, is decided in our favor by Justice Hogeboom in Gordon v. Gaffey, (11 Abb. Pr. 1;) also by Justice Clerke in Shaffer v. Mason, (43 Barb, 501; 29 How. Pr. 55; 18 Abb. 455.) In Gordon v. Gaffey the justice very properly treats the Code as giving this remedy only to plaintiffs in actions on contract, when a specific sum is due and claimed.
    5.. There is an additional reason why this court cannot issue an attachment in an action of tort like the present, as against a non-resident. There is no mode of commencing an action of tort by service of summons by publication on a nonresident defendant pointed out in the Code, and the attachment is to be issued in “ an action previously or simultaneously commenced ” with the issuing of the attachment. The com- . mencing an action is by the service of a summons on the defendant, either personally or by publication. Section 135 of the Code, which provides as to the service of summons by publication, seems not to include in it “ an action of trespass de bonis ” relative to personal property not within this state. (See subd. 4 of § 133.) “ An action for the recovery of money ” should not have in this case a summons for relief; such is the reasoning of the case of Hernstein v. Matthewson, (5 How. Pr. 196;) and an attachment in an action of tort was there set aside.
   Robertson, Ch. J.

The authority to plaintiffs to procure the attachment of the property of defendants is contained in the first three sections of the fourth chapter of that title of the Code which relates to provisional remedies, (227, 228 and 229.) They define the action in which, and the classes of defendants of whom, the property may be attached, and prescribe the officers by whom, and the evidence on which, process to attach must be issued. The first and third of those sections limit the classes of defendants whose property may be attached, to foreign corporations, non-residents, persons absconding or concealing themselves to defraud their creditors or avoid service of process, or removing or disposing, or intending to remove or dispose ofj their property, with the former intent. There is nothing in them to show_ they were applicable to different classes of cases. They may therefore be read consecutively, as together forming one provision, divided into separately numbered sections relating to different branches of the same subject, for mere facility of reference. The arrangement is perfectly natural, of first defining the predicament of the defendants whose property may be attached, and the class of actions in which it may be attached, and next prescribing who was to issue the process to seize it, and the evidence on which it was to be issued. The only argument offered to establish that in actions of tort the property of the defendants may be attached, founded upon a supposed enlargement, by section 229, of the cases in which it may be done under section 237, appears, therefore, to me rather strained and fanciful.

That supposition is based entirely on the fallacy of assuming the word whenever,” in section 229, to mean not, according to its original import, on all occasions or times when, but “ in all cases in which.” In fact it has no more effect than the adverb “ when.” It refers, simply, to the times or occasions of the exhibition, to the proper officer, of evidence of a certain fact by affidavits, to wit: a cause of action, meaning of course, under the preceding section 227, whose office was to prescribe the actions in which, and the defendants against whose property, such process might issue. That whole subsequent section (229) was necessary to provide, and was the only one which did provide, for the mode of obtaining such process in all cases ; such preceding section having wholly omitted to do so. The first might have been rendered superfluous if the description of the actions in which property might be attached as being those for the recovery of money had been embodied in the last; but the provisions of the latter were indispensable to obtain process in any case.

In order to account for an enactment giving a right of attachment in actions for torts separately, from that giving one in actions on contracts, it is assumed that the first presupposes an action to have been commenced before the application for the warrant. Ho good reason is assigned for creating such a distinction, and it certainly is not expressed in language, in those sections. The classes of defendants whose property may be attached, are those least likely to have a summons personally served on them, being foreign corporations, and non-resident, absconding or concealed persons. It is true, service could be made in such cases by publication, but a warrant of attachment would be of little avail in such case, as it could only be enforced after the last day of publication which completed such service, (§ 137 ;) and the very ground of a right of attachment is, that such classes of defendants, when sued in this state, are likely to remove their property out of its jurisdiction or conceal it. The Code certainly takes for granted that an attachment can be issued in actions on contracts before the service of a summons. (§ 132.)

It is also a question on which there is some conflict, between what persons and for what torts committed out of this state, actions can be brought, within it. (Malony v. Dows, 8 Abb. Pr. 316. McIvor v. McCabe, 16 id. 319.) Even in actions on contracts, it is held that no attachment can be issued unless the preliminary affidavit details the precise items of claim. (Ackroyd v. Ackroyd, 11 Abb. Pr. 346.) Yet the plaintiff in an action of tort must be at liberty to fix his own damages ; and the court has no discretion in determining the amount. If the attachment is discharged on giving an undertaking, it must be for double the amount “ claimed by the plaintiff’s complaint.” (Code, § 241.) Such a provision would1 be equivalent to one allowing a plaintiff to seize as much of the property of a foreign corporation or non-resident debtor as he thought proper, in an action for a tort.

The decision directly upon the point, and the reasoning in the case of Gordon v. Gaffey, (11 Abb. Pr. 1,) is more satisfactory than the incidental remarks in Heustein v. Mathewson, (5 How. Pr. 196,) or the hasty disposition of it in Floyd v. Blake, (11 Abb. Pr. 349.)

Without reference to other points discussed, I think the one just disposed of, sufficient to base thereon an affirmance of the order. Such order must therefore -be affirmed, with costs.  