Plaintiff sued defendant by attachment, as an absconding debtor, on implied contract, and, on default, obtainеd judgment for the sum of $18,000. The default having been made absolute, the case was referred to the court for аssessment of damages. There is in the record a report of the clerk containing the computation; but the judgment recites a finding by the court on proofs taken in open court.
An objection, not much insisted on, was made, that, in the affidavit of publication, while the affiant described himself as “ printer and publisher of the Three Rivers Herald, a public newspaper, printed, published, and circulating in the county of St. Joseph,” etc., there was no direct averment that he was such printer, or that the paper was so published. We do not think the affidavit would have expressed the idea any more clearly by such form of allegation, and we do nоt think there would be any difficulty in holding that the recital is equivalent to such an allegation.
The only important questiоn in the case arises out of the nature of the cause of action. There having been no personal service and no appearance, the case depends entirely on the attachment, and it is claimed the cause of action is not within the statute, as not originating in contract. The affidavit in attаchment, when this case was begun, was required to set out that the indebtedness sued on is due “ upon contract, еxpress or implied, or upon judgment.” How. Stat. § 7987.
The affidavit here did set out an indebtedness on implied contract, but the declaration is claimed to depart from it. The averment is as follows: That the defendant—
“Was indebted to the plaintiff in the sum of eighteen thousand dollars, for moneys allegad by the plaintiff to have been embеzzled and stolen by the defendant while he, the said defendant, was a clerk, and acting as such, in said bank and in the еmployment of the plaimiff as such, which said eighteen thousand dollars, at the time of such embezzlement*536 and thеft, as aforesaid, by the defendant, was the property of the plaintiff, and which said property and money, so embezzled and stolen by the defendant, as alleged, the said defendant has taken away and appropriated to his own use.”
It is not claimed that, where money has been held and appropriated wrongfully, assumpsit will not lie; but the claim is that the attachment law only refers to actual and direct contract relations, and does not apply where the contract is made such by legal intendment only.
The authorities cited on the argument from our own reports render it unnecessary to look elsewhere to ascertain whether implied assumpsit will lie for money actually in defendant’s hands, and misused or withheld. The recent case оf Farwell v. Myers,
It would not be going vеry far to hold that the appropriation of these moneys now sued for was a violation of defendant’s contract of employment. Under our statutes, there can be no embezzlement by a private person that does not get its definition from a violation of the duties of his employment, which is, between private рersons, always a contract relation. A declaration setting out the employment, and the duty of paying over moneys, and a failure to do 'so, would be a very plain case of suit directly on contract. The fact that the failure has been in some cases made criminal does not destroy its contract relаtions. But it is sufficient to say that, when the statute gives the remedy in cases of express and implied contract, we have no authority to graft an exception on the statute, and hold that there are differences in imрlied
As the judgment recites a finding by the court itself, the report of the clerk is surplusage.
The judgment must be affirmed, with costs.