M'Cullough against Grishobber, 4 Watts & Serg. 201

The opinion of the Court was delivered by Gibson, C. J. — A foreign attachment which, like outlawry, is a process to enforce an appearance to a personal action, can be legally sued out only for a debt presently demandable; and it was held in Pratt v. Stryer, (1 P. A. B. 282), that even a domestic attachment, which, like a commission of bankruptcy, is a process of distribution among creditors, can be legally sued out only at the instance of a creditor who has a present right of action against the person of the debtor. The report of that case is

summary, and the reason given for the judgment unsatisfactory. The tenth

section of the statute then in force, like the thirty-fifth

section of the present statute, allowed creditors to come in for debts not due; but because the provision was borrowed from the British bankrupt laws, under which such a creditor could not petition, the court thought he could not proceed against an absconding debtor under our attachment law. It is by no means certain, however, that the construction put on the bankrupt laws, was the proper one. In Hurst v. Brown, (Peake’s N. P. Ca. 54), Lord Kenyon said that all debts, due or undue, might support a commission; but that case was overruled by Hawkins v. Duperoy, (9 East 489), and Parslow v.

Dearlove, (4 Taunt. 200), in consequence of which it became necessary to enact the 6 G. 4, c. 14, to do away with the discrepance and put.the law on the reasonable footing of allowing every creditor to petition without regard to the falling due of his debt. But decisions on bankrupt laws containing peculiar enactments, are blind guides to the

interpretation of laws which constitute a system remotely analogous.

The purview of our statute is as broad as words can make it. “Writs of domestic attachment,” it is enacted, “ may be issued by the Court of Common Pleas of the county in which any debtor, being an inhabitant of this Commonwealth, may reside, if such debtor shall have absconded from the place of his usual abode within the same, or shall have remained absent from this Commonwealth, or shall have confined himself to his house or have concealed himself elsewhere, with a design, in either case, to defraud his creditors: but no such writ shall be issued except on oath or affirmation, previously made by a creditor of such person, of the truth of his debt.” The last clause contains the only condition prescribed by the legislature; and what authority have the courts to prescribe another ?

The same justice which requires that an immature debt be admitted to a dividend, requires that the creditor be allowed to originate the process. What matters it who originates it ? Some one must move in the business; and if only those who had a present right of action could do so, cases might occur in which no one would be qualified or willing, and in which the fraudulent purpose might, for that reason, be effected.

It is a postulate of the statute, that the debtor has not only withdrawn his person from the process of the State, but that he means to withdraw his effects also; and it would be a narrow construction that would compel the creditor to remain a passive and powerless spectator of his measures.

If then the defendants were competent to sue out the attachment, or, in other words, if the writ was not originally illegal, little more remains to be decidedfor it is conclusively settled, that where the process is legal, the plaintiff is answerable only for a malicious abuse of it; and that where the circumstances afford no inference of malice, as in Gibson v. Chaters, (2 Bos. & Pul. 129), actual malice must be proved. Of actual malice, in this case, there is not a shadow; and what are the circumstances ?

The plaintiff below, who is an inhabitant of Yenango county, came to Pittsburgh to lay in groceries for a store to be set up, as he said, in the neighbourhood of his residence; and on the confidence reposed in his story, he got credit for groceries purchased from the defendants at six months, as well as for drugs purchased from Holmes & Kidd.

He directed the casks and packages to be marked with his name, but not with any place of destination; and ordered them to be sent to Upperman’s cellar, alleging that, as he purposed to send his own team for them, and the teamster was a German, the arrangement would preclude mistakes from his ignorance of the English language. The goods were sent there; but the defendants soon afterwards discovered that instead of being taken to the place of the plaintiff’s residence, they were secretly put aboard of a steamboat and taken in an opposite direction to Louisville in Kentucky.

Surely this was food for apprehension, even to surfeiting; and under its influence, the defendants sued out the attachment. The consequences were peculiarly disastrous to the plaintiff; but his folly, or his falsehood was to blame for them. Who can say that he would have returned to the State had not his property been seized ? It happened to be sufficient for his debts; but what assurance had the defendants that it would be left to answer them ?

The judge took the legality of the writ for granted, but erroneously put the cause on the question of fraudulent intention, it being enough for the defence that the suspiciousness of the plaintiff’s conduct had made recourse to an attachment a measure of reasonable precaution. There was indeed some little conflict of evidence in regard to his representations at the time of the purchase; but that, and not a design to abscond with the goods, was the matter to be left to the jury. A few minor points have been raised; but as the determination of the principal point is decisive, it is unnecessary to examine them.

Judgment reversed, and venire de novo awarded.