Opinion
(December Term, 1853.)
A Carpenter's tools may be seized and sold under an original attachment.
THIS was an action of TRESPASS, tried before BAILEY, Judge, at Spring Term, 1853, of the Superior Court for Wake county.
Miller, for the plaintiff.
E. G. Haywood, for the defendant.
The facts were agreed on, as follows: The plaintiff, a carpenter, owned a set of tools, with which he carried on his trade, in the county of Chatham. Whilst absent from the county, these tools were seized and sold by the defendant Fogleman, a constable, under an attachment sued out by the defendant Whitehead. The plaintiff did not appear to replevy.
His Honor, being of opinion with the plaintiff, gave judgment for nominal damages and costs. Whereupon the defendant appealed.
Can an action be maintained for taking under an original attachment, a set of Carpenter's tools, the working tools of the plaintiff, and selling them under a venditioni exponas, to satisfy the judgment, the defendant having failed to appear and replevy?
The question is now presented for the first time, so as to call for a decision.
An original attachment is a process given by Statute to compel a defendant to appear. It is a continuation of a " distringas," a common law process, and a garnishment according to the custom of London; with the latter, we are at present not concerned.
When a defendant, after being summoned, failed to appear, and attachment issued; if he still neglected to appear, a writ of " distringas," or "distress infinite" issued, commanding the Sheriff to distrain the defendant from time to time and continually afterwards, by taking his goods and the profits of his land, so as to compel him to appear." Here, by the common law, the process ended, in cases of injuries without force; i. e. actions of debt c. The defendant, if he had any substance, being gradually stripped of it, by repeated distresses, until he rendered obedience to the King's writ, and if he had no substance, the law held him incapable of making satisfaction, and therefore, looked upon all further process as nugatory. The goods distrained were forfeited to the King, the plaintiff could take nothing, not having ascertained his debt by judgment — but a statute allows the Court to direct the reasonable costs of the plaintiff to be paid out of the fund — 3 Blackstone 280.
Our Statute directs a writ to issue, commanding the officer to attach the estate of the debtor, so as to compel him to appear: if he does so and gives bail, the property is delivered back to him, and the Court goes on in the ordinary way: if he fails to appear after due advertisement. a mode is provided by which the plaintiff may ascertain the amount of his debt, take judgment and have the property sold and applied to its satisfaction, instead of being forfeited to the State; which is a decided improvement upon the common law process.
It is entirely clear, that under the distringas, all of the debtor's property, without any exception, may be seized, and it is equally clear, that the same may be done under an original attachment, which is a substitute for it. So, it is clear, that under a " fieri facias" at common law, all of the defendant's goods and chattles may be levied upon and sold. — In this respect, these writs, which are commands of the sovereign, differ from the extra-judicial remedy of distress, by which a landlord is allowed to take the goods found on the premises, except beasts of the plough, for the sake of husbandry, and things in the actual use of the tenant, for fear it might lead to a breach of the peace. But this saving in regard to the private remedy of landlords, does not extend to writs; under them, the officer may take any thing, a horse out of the plough, or that the defendant is riding, or the axe out of his hand, and he may use force, with the single exception, that he cannot break the outer door of the defendant's dwelling — "for it is his castle."
The act of 1836, Ch. 45, Sec. 7, excepts from the operation of a " fieri facias," working tools, arms for muster and other articles. It is insisted, that although the words are confined to a " fieri facias," the exemption by implication extends to an original attachment. This is a non sequitur; because the Legislature deemed it expedient to favor a citizen who resides among us, and renders obedience to the ordinary process of the law, by exempting from execution the tools with which he earns a livelihood, or the arms with which he musters, it does not follow that the intention was to extend the like favor to one, who leaves the country or persists in his disobedience to the commands of the State, which is shown by his failing to appear.
If in fact he has left the country, wherefore put in the custody of the law his working tools and arms for muster? What objection can there be, to having them sold and applied to the payment of his debts? Or, if he is still in the country, and continues contumacious, with what grace can he ask to have his goods restored to him, or be allowed to bring an action for them?
Judgment for defendants.