
    SHAFFER a. MASON.
    
      Supreme Court, First District;
    
    
      General Term, February, 1865.
    - Attachment.
    The Code of Procedure does not authorize the issue of an attachment as a provisional remedy, in actions for damages for wrongs.
    Appeal from an order setting aside an attachment.
    The plaintiff in this cause brought his action to recover damages for an alleged conversion of his personal property, situated, in Aecomac county, Virginia, by the defendants, who, it was claimed, had in Virginia, under color of process, levied •on it and sold it as the property of one Rash.
    At the time of commencing this suit', the- plaintiff procured •an attachment to be issued against the property of the defendant as a non-resident, under sections 227 and 229 of the Code •of Procedure.
    On motion of the defendant, the attachment was vacated at special term, on the ground that the Code does not authorize •an attachment as a provisional remedy in an action of tort.
    The motion is reported, Ante, 286. From the order, the plaintiff now appealed. ' u
    
      L. S. Chatfield, for the appellant.
    
      D. McMahon, for the respondent.
    
      
       Reported, Ante, 450.
    
   By the Court.*—Sutherland, J.

I think the order at special term vacating the attachment was clearly right. The words of section 227 of the Code are certainly very broad. That section allows the property of the defendant to be attached in the manner thereinafter prescribed, in an action, for the recovery of the money against a-defendant whoi is'not a resident of this State. Prior to 1857, this section read, “in an action for the recovery of money.” The section was amended in 1857 by inserting the article “the” between “ of” and “ money,” and' by inserting other words in another part of the section, allowing an attachment to issue on the ground that the defendant was about to remove, secrete, or dispose of his property with intent to defraud his creditors. Both amendments may be considered as -a legislative construction of the section to the effect that the attachment was allowed only where the action was for a money-demand on contract. If any significancy or effect is to be given to the amendment by inserting the definite .article “ the,” the insertion of that word was intended ‘to limit or define the general signification of the word “ money,” so that the words “ the money” must now mean the'money demanded in the summons in the action. (See § 129, subd. 1.)

The other amendment in 1857 also goes to show that the attachment was to issue only in cases wh.ere it was claimed by the plaintiff that the defendant was indebted to him. But, independent of these considerations, I am satisfied, upon looking at the whole of section 227, and other sections, particularly sections 229 and 231, that it was not the intention that the attachment should issue in an action for a trespass, when the claim is for damages to be assessed by a jury.

By section 229, “the warrant may be issued whenever it shall appear by affidavit that a cause of action exists against such defendant, specifying the amount of the claim, and the grounds thereof,” &c. These words plainly imply that the attachment is to issue only when the plaintiff can conscientiously specify and swear to the amount of his claim. How can a plaintiff do that in an action for an assault and battery, or libel, or trespass do bonis, when the very object of the action is to have the damages (the amount he is entitled to recover) assessed and determined for him ? Can it be supposed that the Legislature intended, in such a case, that the plaintiff might preliminarily assess his own damages, at any figure he chooses, and, having thus specified it, swear to it as a claim which he has against the defendant for so much money ? I think not. I think the Code of Procedure never contemplated such an extraordinary proceeding.

By section 231,. the sheriff is to attach sufficient of the property of the defendant to satisfy the plaintiff’s demand, according to the complaint, together with costs and expenses.

Without referring to other sections of the Code, I will say that I concur generally in the views expressed by Justice Hogeboom in Gordon a. Gaffey (11 Abbotts’ Pr., 1), and that I think his decision in that case was right.

Mr. Justice James, in Floyd a. Blake (19 How. Pr., 545), cites the beautiful, poetical extravaganza of Shakspeare, “ He who steals my purse steals trash,” &c., to show that a “ good name,” being so much more valuable than riches, it was reasonable that the law should afford the same facilities for enforcing a judgment for an assault upon character that it does for an assault upon the purse.

Now, as my reverence for Shakspeare is too great to permit me to deny that he may be cited even on a question of the construction of the Code, I will say that Shakspeare contrasts forcibly and beautifully the stealing of a purse with the filching of a good name, and that the question is whether the Legislature intended a plaintiff in an action for a libel or slander to determine preliminarily that his name was good, and that he might set his own value upon it, and fix and swear to any amount in dollars that he chooses, as the damages for filching it, and thus have sufficient .of the property of the defendant attached at the commencement of the action to secure the payment of that amount.

It is strange that the very ground upon which Judge Edmonds discharged the attachment in Hernstien a. Matthewson (5 How. Pr., 196) did not lead him to doubt the correctness of his construction of section 227 of the Code.

I think the order appealed from should be affirmed, with costs.

Clerke, J.

I concur. The word creditors” cannot be applied to the plaintiff in an action of tort.

Ingraham, J. (dissenting).

Where the action is to recover the value of personal property, I see no reason why the attachment may not issue. I concur that the attachment should- not issue in actions for torts against the person.

Order affirmed. 
      Present, Ingraham, P. J., Clerke and Sutherland, JJ.
     