Opinion
(June Term, 1858.)
The affidavit required under the 16th section of the 7th chapter of the Revised Code for an injury to the property of another, must set out that the defendant absconded, or concealed himself, within three months after the injury was done; and the attachment must be issued within that time.
It was Held that a defect in the affidavit, in not stating that the defendant absconded, c., within three months after the injury was done, may be taken advantage of by motion to dismiss, without the property's having been replevied.
A false warranty, or a deceit in the sale of personal property, is not "an injury to the property of another" for which an attachment is authorised to be issued under the 16th section, 7th chapter, Revised Code.
MOTION to dismiss an ATTACHMENT, before SAUNDERS, J., at the last Spring Term of Person Superior Court.
Moore, for the plaintiff.
Winston, sen., and Miller for the defendant.
The attachment was predicated on the following affidavit, viz:
"State of North Carolina, Person County.
W. R. Webb maketh oath before me, W. R. Reade, a justice of the peace, in and for the county and State aforesaid, that William O. Bowler hath endamaged him in his property by a false warranty in the sale of a slave, and by falsely and deceitfully selling the said slave as sound, he knowing that the said slave was unsound, to the amount and in the sum of one thousand dollars, to the best of his knowledge and belief, and that he so absents himself, from the county and State aforesaid or so conceals himself that the ordinary process of law cannot be served upon him. Sworn to and subscribed on this 4th day of September, A.D. 1857."
The attachment was made returnable to the next Superior Court of Person county, and was returned levied on a house and lot in Roxboro.
The defendant's counsel moved to dismiss the attachment upon the ground that it was improvidently issued, and that there was not sufficient matter set forth in the affidavit to authorise the Court to take jurisdiction of the case.
To this it was objected, that the property levied on not having been replevied, counsel had no right to make this motion, nor the Court to entertain it.
The Court overruled this reply of the plaintiff, and upon consideration of the motion, ordered the attachment to be dismissed. From which judgment, the plaintiff appealed.
The position assumed in the argument that a claim for damages for the breach of a warranty was embraced by the attachment law, prior to the amendment in the Revised Code, is not tenable. It had been settled by general acquiescence, that the debt, or demand must be such as could be recovered by an action of debt, or upon indebitatus assumpsit, and not a demand for unliquidated damages for breach of contract. The same distinction applies to the jurisdiction of a single justice of the peace, and is well marked by the case of Tyer v. Harper, 1 Dev. Rep. 387, where it is held that a single justice has not jurisdiction for a breach of contract in failing to deliver a certain quantity of goods, so as to make a full load, which was to be paid for per hundred.
Considering this proceeding in reference to this amendment, Rev. Code, ch. 7, sec. 16, there are two objections to it, both of which are fatal. It is necessary to set out in the affidavit that the defendant absconded or concealed himself within three months after the injury was done, and the attachment must be issued within that time.
It was said the Court cannot notice the omission, unless the defendant replevies so as to make himself a party, and then takes advantage of it by demurrer, or motion to dismiss. We do not think so, for the statute is peremptory, and the court is bound to notice it; sec. 17, "If any attachment shall issue under the preceding section, in any other manner, or time, than is herein allowed, the same shall be void, and the court shall not proceed therein."
Again, it was said the omission may be cured by setting it out in the declaration, and so the order to dismiss was premature. In the first place, to permit the plaintiff, to file a declaration, would be to "proceed;" but waiving this: It is true, some defects in the writ may be cured by the declaration, but there is a marked distinction between an ordinary writ, and an attachment. In this latter, the plaintiff is allowed to get a judgment against the defendant without personal service of process, which is contrary to the course of the common law, and as some protection to the absent defendant, the statute requires all the material facts to be set out in an affidavit, which is made the groundwork of this proceeding. By the section under consideration, the fact that the defendant absconded, or concealed himself within three months, is made as material to the right to issue the attachment, as the fact that an injury was done to the plaintiff's property, and to allow the omission of either in the affidavit, to be cured by the declaration, which is not sworn to, would deprive the defendant of a safe guard required by the statute, to wit: the oath of the plaintiff, and make that provision of no effect.
2. We are of opinion that a false warranty, or deceit in the sale of personal property, is not embraced under the terms "an injury to the property of another," in the 16th section. "Property" is sometimes used in a broad sense as synonymous with "estate," but the legal signification of the two words is not the same. "Estate" is the broadest term, and includes "choses in action." "Property" is confined to things that are tangible. In Campbell v. Smith, 3 Hawks' Reports, 590, HENDERSON, J., says "a debt, or duty, is not property. A person has an interest in a duty, but a property in a thing only." "Personal property" means goods or chattels — things, which at common law, could be seized under a fi. fa., or be the subject of larceny. Pippin v. Ellison, 12 Ired. Rep. 61; Hurdle v. Outlaw, 2 Jones' Equ. 76. Here the matter is fully discussed, and opinions filed by two of the Judges; and it may be remarked that the latter case, which was one of great importance, and attracted much notice, was decided at December Term, 1854; and it is fair to presume that the attention of the Legislature was called to it. But at all events, these decisions fix the meaning of the word "property," and we are not disposed to unsettle it; being satisfied from a consideration of the amendment made by the section before us, that such was the sense in which it is there used. Had the intention been to include all injuries affecting one's estate, whereby he acquired a cause of action, apt words would have been used to express so general an idea. The words of the section were evidently well considered; "an injury to the proper person (excluding slander, c.,) or property," that is, a thing tangible, and not a mere right. In making this extension to an exparte proceeding, there was an obvious reason for restricting it to such wrongs, as, from their nature, if committed, could be clearly proved, i. e. that a house was burnt, a negro killed, or a horse taken away. To this we impute the use of the particular word "property." — What property of the plaintiff was injured? Not the negro! Or suppose property to include a chose in action; what chose in action of the plaintiff, was injured? He had none to be injured prior to the act complained of; and really, the idea of an injury done to a right of action involves a legal absurdity; especially, when such a right of action is not pre-existing, but arises, and is brought into existence by the very act that is complained of as doing an injury to it.
PER CURIAM. There is no error. Judgment affirmed.