
    
      Runyan vs. Morgan.
    
      1. An attachment may issue under the provisions of the act of 1843, ch. 29, for the recovery of damages for breach of contract
    2. The attachment laws of the State of Tennessee $re not to be strictly construed, but liberally, with a view to carry into effect the obvious intent of the legislature; and, therefore, an affidavit, that the master of a steamboat was about to remove the boat beyond the limits of the State, is regarded as a sufficient allegation, that he was about to remove himself beyond the limits of the State.
    Morgan procured the issuance of an attachment against New-comb, returnable to the Circuit Court of Davidson county.
    The affidavit declared, that “the steamboat Belle of Nashville, of which H. H. Newcomb is owner, or one of the owners and master, is justly indebted to the said Jas. W. Morgan in the sum of five hundred and eleven dollars, for fifteen boxes of tobacco, shipped from Cincinnati to Nashville, on the 20th December, 1844, and not delivered, which sum is justly due, and that said Newcomb is about to remove the said steamboat beyond the limits of the State.” The attachment was levied on the steamboat Belle of Nashville. A motion was made to quash the attachment. This motion was overruled. A verdict was rendered in favor of Morgan against Newcomb, and judgment was rendered against Newcomb and Runyan the surety on the re-plevin bond.
    The case was brought up by Runyan by petition for writs of error and supersedeas, which were granted by one of the judges, N. Green.
    
      John M. Lea, for the plaintiff in error.
    The requisites of the attachment laws must be strictly complied with: Cook’s Rep. 365:1 Yerg. 12-5: 2 Yerg. 474: 3 Yerg. 62: 4 Yerg. 162: 9 Yerg. 428; and the reason is, because said laws authorize an interference with a man’s property before a debt is legally ascertained to be due. Another reason is, that they are in derogation of the common law, and must be construed strictly. An attachment can only issue under the act of 1843, “to amend and make uniform the attachment laws of this State,” when the debtor or defendant in any suit or judgment, is removing or about to romove himself or his property beyond the limits of this State. The word property is not mentioned in this affidavit, and from' all that appears, said Newcomb was possessed of other property besides the Belle of Nashville, and may have had, here in Davidson county, effects amply sufficient to satisfy any claim of the plaintiff-. The real meaning of the law is, that if a debtor is removing his property, or a sufficient quantity or amount to endanger the eventual security of the debt; then an attachment lies — and these facts must be recited in the affidavit, unless the plaintiff chooses to adopt the words of the statute. Merely to state that the defendant is about to remove a specific article of property, seems hardly sufficient. Were the law so, every defendant in a suit, instituted, perhaps, without just cause or even from malice, when he mounted his horse, or put his trunk on a steamboat to take a journey, would run the risk of having his land and negroes attached and bound up to abide the event of a tedious litigation. Such cannot be the law. The attachment is, therefore, void, because the affidavit does not contain an indispensable requisite.
    Again: The cause of action set forth in the affidavit, is not a debt, but a claim for damages, the non-delivery of fifteen boxes of tobacco, shipped from Cincinnati to Nashville, a simple breach of contract. The value or market price of said tobacco at Nashville, at the time it should have been delivered, would be the measure of damages in such a case; and that value might be more or less, one hundred or two hundred dollars; said value depending on a number of contingencies, such as the number of buyers in the market, the quantity on hand, &c. Or had the tobacco been lost by the dangers of the navigation, there would have been no claim whatever. Upon a claim sounding in damages, then, can an attachment be issued?
    The act of 1843 does not repeal the act of 1794, and they are to be construed together; it was mainly intended to remedy the defect in the old law, which did not provide in any case for the issuance of an attachment after suit instituted, notwithstanding the debtor might attempt to remove his property beyond the limits of the State. Acts, which would not,authorize the issuance of an attachment under the act of 1794; for instance, a public removal of one’s self or property, either before or after the institution of a suit, now, under the act of 1843, justify the exercise of that process; but it does not alter or interfere with the kind or sort of indebtedness which, before the passage of that act, authorized the issuance of said attachments. Under the act of 1794, an attachment will not lie for unliquidated damages, and the point has been directly determined by the Supreme Court of North Carolina. 1 Iredell’s Law Rep. 278. Both statutes speak of making affidavit to or about the amount of indebtedness, and Judge Gaston seems to think that an attachment lies in no case where debt cannot be brought. ■ Unli-quidated damages, such as damages which, in their nature, are uncertain for the breach of an agreement, cannot be made the subject of an attachment. 2 Iredell, 282. It is also decided in 5th Iredell, 374, that in no case where the claim of the defendant against the garnishee rests in unliquidated damages, can the demand be attached.
    
      These cases go clearly to show, that claims merely for breach of contract cannot be sued on by process of attachment, and, also, that where attachments are regularly issued, such claims cannot be considered effects upon which a levy may be made.
    The act of 1843, says, “a defendant in any suit or judgment,” but the context clearly shows, that it means defendants sued on claims that would authorize attachments to be issued against absconding or non-resident debtors, in both of which cases the justice of the debt was required to be verified.
    
      F. B. Fogg, for the defendant in error.
    It is respectfully submitted to the court, that the construction of the act of 1843, ch. 29, should not be so strict and rigid, as the restriction of the former attachment laws. The object of this statute, since the abolition of imprisonment for debt, was to prevent property from being removed from judgments that should be rendered upon due notice and service of a summons upon the debtor, rather than to provide for an ex parle proceeding against property, or to compel appearance. In this case a summons issued and was served upon the defendant Newcomb long before the May term, 1845, to which the attachment was returnable, and he appeared at that term by his counsel, and filed no plea in abatement, and made no motion to quash. When ought such a motion to be made according to our practice? The rule has been uniform in this State ever since Iknew any thing of the practice, that if both parties appear by their at-tornies at the appearance term, and no motion to quash is made, or plea of abatement is filed, the case is considered as standing on the rule of plead and try, and a plea in abatement cannot be filed at the trial term. This practice is founded upon the decision of the case of Shaw vs. Boiuen, 1 Tennessee Rep. 249. The same reason applies to a motion to quash, as a plea in abatement, the former being in abatement for defects appearing on the face of the writ or other process, and is founded upon the universal rule in all courts, that such defects should be taken advantage of at the earliest period after appearance, in order to prevent the costs of summoning witnesses and preparing for trial. In North Carolina, where they have construed these statutes more strictly than in any other State, they decided very early, that if a plaintiff in attachment fails to give bond or file an affidavit it should be pleaded in abatement, because the statute provides, as in our act of 1794, ch. 1, sec. 19, “that every attachment issued without bond and affidavit taken, and returned as aforesaid, shall be abated on the plea of the defendant.” Powell vs. Hampton-, Conference Reports, 86: BicJcerstaff vs. Dellinger, do. 299: in Gannon vs. Barringer, 2 Devereux & Battle, 503 the court refers to these cases in Conference Reports without overruling them, and the judge says, (the fourth resolution in Powell vs. Hampton, 5,) “that the matter must be put on the record by plea, and cannot avail on a writ of error, where the judgment was by default. Without reconsidering that point, we think that the statute must at the least mean, that where the defendant does appear, the defect may and must be pleaded in abatement according to the general principles of pleading, and consequently the defect is cured by the plea in bar.” This was a case, where the affidavit set forth only the amount of the debt, and left out the important allegation, that the defendant was an inhabitant of another State. Does not the same reason apply to a motion to quash as to a plea in abatement, and why should it not be made at the first term? It is a waiver if not then made, and otherwise it would operate as a surprize upon the plaintiff. In analogous cases in other States this practice prevails. Carpenter vs. Aldridge, 3 Metcalf, 58. The statute of Massachusetts required, that where a suit was brought by a non-resident, the writ should be endorsed by an inhabitant of the State, otherwise it should be dismissed. The writ in that case was entered at August term, 1840: at March term, 1841, the defendants moved that the action should be dismissed because it was not endorsed as required by the statute. The judge below denied the motion, “because it was made after the first term.” The Chief Justice says; “It is true the provision of the statute is explicit and mandatory, but it is perfectly manifest that it is a provision made for the benefit of the defendant, and therefore he may waive it, and upon very strong grounds of justice and expediency it has been adjudged, that if he does not take advantage of it in season, he does waive it. 2 Mass. 102: 5 Mass. 98: 3 Grccnleaf, 216.” And the decision was, that the motion was waived if not made at the first term. In 1st Metcalf, 50S, Simonis vs. Parker, where a motion was made to quash the proceedings, the Chief Justice in declaring the opinion, says, that “It is true, that the time of filing a plea in abatement is limited by well established rules of law. But we think that the time for moving to dismiss depends upon the same reasons, and is to be governed by a rule of law equally well settled, but not so definite in its terms. The doctrine of waiver is founded upon a useful and highly reasonable principle, and one of very extensive application. While the law protects the rights of the parties, even in minute and unimportant matters, it requires diligence and good faith in taking advantage of its rules to accomplish those ends and not to work injustice. If a party takes no notice of any matter of exception to the form or service of the process in an early stage of the proceedings, it affords a reasonable ground that he considers them of no importance, and is willing to proceed to the trial of his rights upon the substantial merits of the controversy.’5. In Park-man vs. Crosby, 16 Pickering, the Judge in delivering the opinion of the court, says, “The rule is, that a defendant who complains of irregularity of process, must, if he has an opportunity, apply to have it set aside before the plaintiffhas taken any step in the case. The case of Downes vs. Witherington, 2 Taunton, 242, is a strong case in support of this position.” Rule to show cause why an attachment should not be dissolved will not be heard, unless the application is made at the first term. Miltenberger vs. Lloyd, 2 Dallas, 79.
    2d. With great deference to the opinion of the court, the affidavit is sufficient. The law requires an affidavit, that the defendant is removing, or about to remove himself or his property beyond the limits of this State. The affidavit states, he is the master and owner, or a part owner of a steamboat, which he is about to remove beyond the limits of this State. Would there be any danger by deciding this affidavit sufficient, to introduce a practice of attaching property of considerable value, because a debtor or defendant was removing some trifling articles beyond the limits of the State? A steamboat ex vi termini employ-cd in navigation is generally of great value, several thousand dollars. In this case there was a claim against the steamboat, and this was the very property sought to be attached. It is frequently all the property that any individual has, and every one knows that its detention is attended with great damage. The affidavit clearly shows, that it was the property about to be removed that was to be attached, because it alleges that the debt or claim was against the boat of which Newcomb was part owner, and it was for a claim that the boat was responsible for upon every principal of law. If the affidavit had stated, that Newcomb was about to remove his property, and no more, the steamboat belonging to him could have been attached; but when it says, that he is about removing a steamboat, (which is his property,) of which he is owner, this will not do, because he may have other property which could be attached and thereby great oppression ensue, although the steamboat only is attached. The bond with a penalty double the amount of the debt, is intended to secure the defendant from oppression against wrongfully suing out the attachment, and as the defendant knows better than other persons the amount of his property, and his intention to remove, is it too much to require of him to rely upon his defence by plea in abatement, instead of requiring certainty to every intent in the affidavit?
    But if the affidavit states, that the defendant is about removing himself beyond the limits of the State, that will do. It is sworn here, that Newcomb, the master and part owner, is about to remove the steamboat. Who is the master? What connection has he with the boat except this. That by the universal law of all countries, he is the confidential agent and manager of the owners, whose duty it is, as long as he is master, to employ the boat in navigation, and to be with the boat at all times superintending and controling it? The master of the boat cannot remove the boat from the port of Nashville to another State, without removing himself with the boat, for his duty is to be on board managing and conducting it, receiving and discharging freight, and liable for all its contracts and torts. The idea of the removal of the boat is inseparable from the removal of the master with it, particularly when he is part owner. And if the affidavit clearly expresses the requisites of the laws, the court surely ought not to quash the proceedings, when they see the plaintiff has a valid claim.
    A steamboat is enrolled, licensed or registered under the laws of the United States, as part of the navigation of the country, entitled to peculiar privileges, having a name, a master and certain papers or documents required by the laws of navigation. This species of property is peculiarly notorious, and unlike any other, protected by laws giving the property a national character, requiring from the master and owners various duties.
   Green, J.

delivered the opinion of the court.

This suit is commenced by attachment. The affidavit is in the following words:

“State of Tennessee, Davidson County: — This 25th day of March, 1845, personally appeared before me, Wilkins Tanne-hill, an acting justice of the peace for said county, Oscar F. Noel, agent for James W. Morgan, and made oath, that the steamboat Belle of Nashville, of which Hezekiah H. Newcomb is owner, or one of the owners and master, is justly indebted to the said James W. Morgan in the sum of five hundred and eleven dollars, for fifteen boxes of tobacco, shipped from Cincinnati to Nashville on the 20th of December, 1844, and not delivered, which sum is justly due, and that said Newcomb is about to remove the said steamboat beyond the limits of this State.”

Upon this affidavit an attachment issued, and was levied on the steamboat Belle of Nashville, and the plaintiff in error became the security of Newcomb in the replevin bond. Subsequently a summons was issued at the suit of Morgan vs. New-comb, a declaration was filed and the cause was tried before a jury, who found for the plaintiff $541 66, and the court gave judgment against Newcomb, and against the plaintiff in error, as security in the replevin bond, for the amount found by the jury. At the September term, 1845, of the Circuit Court, the defendant moved the court to quash the judgment, which motion was overruled.

The plaintiff in error, Runyan, alone prosecutes this writ of error. Two errors are assigned here in support of the motion to quash the attachment.

1st. That the affidavit does not alledge, that Newcomb is about to remove his property, but only that he is about to remove the steamboat, the Belle of Nashville; while, for ought that appears, he may have other property here, sufficient to pay the debt.

2d. The cause of action stated in the affidavit, is not a debt, but a breach of contract for the non-delivery of fifteen boxes of tobacco, and an attachment will not lie for unliquidated damages.

This attachment is prosecuted under the act of 1843, ch. 29, sec. 1, which is in the words; “In all cases, where' a debtor, or a defendant in any suit, or judgment, is removing, or about to remove himself or his property beyond the limits of this State, or shall be absconding, or concealing himself, or his property, or effects, it shall be lawful for the creditor or other person, entitled to sue; to obtain an attachment against the property, debts, choses in action, and effects of such debtor, in the same manner, as such process may be obtained against absconding, or nonresident debtors, under the different statutes now in force in this State, and the same proceedings maj be had as in other cases of attachment, except so far as it is altered by this act.”

It may be observed, in relation to the proper construction of this act, that formerly the courts were disposed to construe attachment laws strictly, because, contrary to the common law, they permit a proceeding in court, and judgment against a party, without notice. But these laws seem to be favorites with the legislature; for as often as the court has decided against the validity of an attachment, on account of some defect in the proceedings, or because the case did not fall within the provisions of the law, so often has the legislature amended the law, with a view to meet the case so excluded.

This history of legislation, demonstrating the anxiety of the law making power, to afford this remedy so broadly and with so little restriction as to the form of proceeding, calls upon the courts to adopt such construction as will carry fully into effect the intention of the legislature.

The act before us, is exceedingly broad in its provisions. It authorizes an attachment, if “a debtor, or defendant in any suit, or judgment, is retnoving, or about to remove himself, or' his property, beyond the limits of the State,” at the suit of “any creditor, or other person entitled to sue.”

1. The first objection to this attachment is, that the affidavit designates a particular piece of property only, as being about to be removed. We are inclined to think this statement, if it stood alone, would not be sufficient. The affidavit ought to use the words of the statute, or it should exclude _ the idea, that other properly might still be left by the defendant, within the jurisdiction, amply sufficient to satisfy the demand. But the affidavit, in effect, states, that the defendant is about to remove himself, as well as his property. It states, that Hezekiah H. Newcomb is owner and master of the steamboat Belle of Nashville, and that he is about to remove said steamboat beyond the limits of the State. This statement is equivalent to the assertion, that he is about to remove himself. He is master,- and if he removes his boat, he also removes himself. His relation to the boat as master, connects his own removal, necessarily, with the removal of the boat.

We think, therefore, that it is sufficiently stated, that the defendant, Newcomb, is about to remove himself beyond the limits of the State. And the law authorizes the attachment, if a party is about to remove himself or his property. So that, if it be not sufficiently stated, that he is about to remove his property, it is stated, that he is about to remove himself.

2. As to the second objection, that the affidavit does not stale the existence of a debt, but only of a liability to damages, for the non-performance of a contract. The reasoning, and authorities presented by the counsel for the plaintiff in error, do not apply to the law now under consideration.

This law does not confine the attachment to a debtor, at the suit of a creditor. But it may issue against “debtor, or defendant in a suit,” in favor of a “creditor, or other person entitled to sue.”

There is no restriction as to the cause of action. It is true, this power may be greatly abused; so may all the attachment laws; but as the legislature has thought proper to enact them, and by repeated amendments, to enlarge their provisions, we must give to their language its full meaning.

Affirm the judgment.  