Boyer v. Bullard

Chief Justice Mercur

delivered the opinion of the court, March 19th 1883.

Foreign attachment is a remedy for the recovery of debts or damages arising ex contractu. It does not lie for a demand founded in tort: Jacoby v. Gogell, 5 S. & R. 450; Porter v. Hildebrand, 2 Harris 129.

It is urged that the action in the present case may be maintained under section 70 of the Act of 13th June 1836, Pur. Dig. 722 pi. 35. It is true that section does declare, inter alia, “where two or more persons shall be jointly but not severally liable to the suit of another if one or more of such persons shall be liable to attachment as aforesaid, and another or others of them shall not be liable to such process, it shall be lawful for the person to whom such liability is due, to sue out and prosecute thereon a writ of attachment and summons.”

We discover nothing in this language or in its purpose, authorizing the action for the enforcement of any debt or dam-' ages of a different nature or class, than was necessary to maintain the action previous thereto. It applies only to cases where, persons “ shall be jointly but not severally liable.” In tort all the defendants are severally liable. This section therefore must be applied only to cases arising on contract where there is a joint liability exclusively. Again the action is given to the person to whom the liability “ is due.” This is not the language usually employed to indicate an action sounding in damages for a tort. The object of the statute was to give the action when one of the joint debtors resided out of the state, and had property within it.

It is further contended that any defect in instituting the action was cured by the defendants below having appeared and entered bail, and dissolved the attachment. This, however, was no waiver of their right to object to the adjudication of a claim for a tort, if this action did not lie therefor.

It is urged that the plaintiff might waive the tort, and claim in assumpsit. This can be done only in cases where there is a contract either expressed or implied. It does not lie for a chattel illegally detained : Bethlehem Boro’ v. Perseverance Fire Co., 31 P. F. Smith 445, and cases there cited.

In the present case there was a mere detention of the chattels. There was no conversion of them into money or into any form of securities. There was no implied sale to the defendants whereby an action for goods sold and delivered could be maintained. The whole case is purely one in tort, for which no action ex contractu can be maintained. We discover no error in the record.

Judgment affirmed.