11 Ala. 941 | Ala. | 1847
The question presented by the record is, whether an attachment will lie upon a breach of warranty of the soundness of a slave.
By the custom of Loudon, which is the original of the statute regulations upon this subject, foreign attachment would not lie, but in those cases where debt, or indebitatus assump-sit could be maintained.
Our statute uses the terms, “debt or demand,” and requires the plaintiff, or his tagent, “ to swear to the amount of the sum due,” and as this could not be done, where the damages were uncertain, it would seem to follow, that an attachment would not lie. We do not think however, it was the intention of the legislature, to confine this remedy to those cases where a debt, in the technical sense of the term existed, as on that supposition there was no necessity for the introduction of the term “ demand,” into the act. The design of the attachment law was, to compel an appearance, in those cases where personal service of the process could not be effected, and we think the reasonable, and just interpretation of the act is, that this remedy was given in all cases of contract, when by the terms of the contract, or by the law acting upon it, the sum due, or the damages to which the party was entitled upon a breach of the contract, was ascertained. If this construction is not put upon the law, the party in such a case as this, will be driven into chancery, when adequate redress could be more speedily obtained in a court of law.
In this case, the damage for the breach of warranty, is the value of the slave at the time of the warranty. [Willis & Robertson v. Dudley, at this term.] This is a sum capable of ascertainment, and of which the plaintiff might make affidavit. It is within the very letter of the statute, a “ demand,” and as it arises out of the contract of the parties,, and the
Asimilar view is taken of the attachment law of Pennsylvania, by Judge Washington, in Fisher v. Consequa, 2 W. C. C. Rep. 382, which like ours, speaks of “ debts and demands.” In that case, the defendant bound himself to deliver to the plaintiff teas of a particular quality, suited to a particular market, and on failure to do so, to pay the difference between teas of such quality, and such as should be delivered. Such teas as the contract called for were not delivered, and the plaintiff swore that the difference amounted to $4500; it was held that the attachment would lie. So also, in Hunt v. Norris, 4 Martin, 517, it was held, that the master, and owners of a vessel, were - liable to an attachment at the suit of the shipper for goods lost through neglect, upon the ground, that the obligation arose out of a contract of bailment. And in Clarke v. Wilson, 3 Wash. C. C. R., that it would not lie where the damages were unliquidated, and the contract afforded no rule for ascertaining them.
These views conduct us to the conclusion, that an attachment will lie in such a case as the present. Let the judgment be reversed, and the cause remanded.