Marshall v. White , 8 Port. 551 ( 1839 )

GOLD T H WAITE, J.

— If we are to consider the enqui-ry of damages as a proceeding after a default, its only object is the ascertainment of the amount to which the plaintiff is entitled; as every other matter is admitted, by the default, to be, as alleged in the declaration. In this view, the instructions given by the presiding judge were entirely free from error; and those requested by the defendant were properly refused. The judgment, however, cannot he supported, because a suit in trover may not be originated by attachment.

There is nothing in the statutes, respecting this process, which authorises a belief, that the general assembly contemplated its issuance for any other than a money demand. Such seems to have been the idea conceived by' the plaintiff, for he states in his affidavit, that the defendants are justly indebted to him in the sum of nine hundred dollars, after deducting all off-sets, &c. The proceeding subsequently, by a declaration in trover, is an error which vitiates the proceedings.

If tlie defendant had appeared, and pleaded to the me--. rits, he would now be too late, to review this irregularity in this, or any other manner; but as the judgment was by default, and the defendant has by no act waived his rights, he must be permitted to avail himself of this error.

In Cain vs. Mather, (3 Porter’s R. 224,) it was held, that on demurrer, the court ought not to look behind the declaration, to ascertain if it be sustained by the process. In that, as in this case, the suit was commenced by an original attachment; and, in both cases, the declarations are for lorls sounding in damages merely. There, however, the defendant appeared, — and instead of pleading in abatement, or-seeking to set aside the declaration for irregularity, — demurred to the cause of action as stated.

We think it might produce evil consequences of some magnitude, To decide, that a party suing out process of attachment to secure a money demand, is authorised to declare in any action which he deems expedient. Such a course would at all times leave an absent defendant entirely at the mercy of the plaintiff, as no other enquiry than the value of property, named in the declaration would be before the jury, and as the default in all such cases admits the entire cause of action as stated.

Let the judgment be reversed back to the attachment, and the case remanded.