{
  "id": 2104262,
  "name": "AMBROSE MINGA vs. JULIUS H. ZOLLICOFFER",
  "name_abbreviation": "Minga v. Zollicoffer",
  "decision_date": "1840-12",
  "docket_number": "",
  "first_page": "278",
  "last_page": "280",
  "citations": [
    {
      "type": "nominative",
      "cite": "1 Ired. 278"
    },
    {
      "type": "official",
      "cite": "23 N.C. 278"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
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  "last_updated": "2023-07-14T15:26:26.827770+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "AMBROSE MINGA vs. JULIUS H. ZOLLICOFFER."
    ],
    "opinions": [
      {
        "text": "Gaston, Judge.\nThe provisions in our act of Assembly, in relation to the rerhedy by original attactment, purport to be directed against absconding or non-resident debtors.\u2014 The case set forth in the 1st section Rev. Stat. c. 6. is \u201c that a person indebted\u201d hath removed or is removing himself out of the county privately, or so conceals himself that the ordinary process of law cannot be served on \u201c such debtor.\u201d That provided for in the second is, when a person, who shall be an inhabitant of any other government, so that he cannot be personally served with process, \u201c shall be indebted\u201d to any person or resident of this State. The cases referred to in the 13th are those, where by law a justice hath jurisdicdiction, and complaint is made on oath that any person hath removed or is removing himself out of the county privately, or so absconds or conceals himself that the ordinary process of law cannot be served \u201c on such debtor,\u201d or that \u201csuch debtor\u201d is an inhabitant of another government. It is true that where these sections prescribe the oath in regard to the existence and extent of the debt, they use the terms \u201c debt or demand;\u201d but it would seem clear that .these are regarded as expressing claims of the same kind, for in the form of the attachment, given in the 4th section, it is recited that \u201cA. B. (or A. B, agent, attorney or factor of C. D.) hath complained on oath that E. F. is justly indebted to him (or the said C. D.) the amount of &c,\u201d and the mandate is to attach so much of the estate of the said E. F. as shall be of value sufficient \u201cto satisfy the said debt and costs.\u201d Now neither in common parlance nor in legal proceedings is a mere wrong-doer designated as a debtor, nor his responsibilty for the wrong classed under the denomination of debts. Debts are the creatures of contract, and the language of these acts must be exceedingly strained- to bring within their operation claims arising not from contract but from tort.\nWe are all convinced that cases not of contract, were not intended to be embraced within these enactments. It is manifest that the debts or demands contemplated were supposed capable of being ascertained with such precision that the amount due thereon could be verified by the oath of \u201c the plaintiff, his agent, attorney or factor.\u201d It would not be a little absurd to suppose that the plaintiff should be required to swear to the amount due him because of an assault, or of defamat01T w0lds> or \u00b0f a malicious prosecution or any other personal injury, which' is incapable of being rveighcd in pecuniary scales; but we can scarcely think with gravity of \u201chis agent,' attorney or factor\u201d being received to state the account and swear to the true sum due thereon. Besides, if we must understand the term debtor, when describing the object of the attachment, sufficiently comprehensive to take in all persons,-against whom civil suits may be instituted, how can we refuse to give the same meaning to the same term in the same statute, where'the debtors of the defendant are directed to be summoned to answer for'what may be due from them to the defendant? He, who has committed a wrong,-is, in the eye of reason, just as well'qualified as he who has received it, to declare on oath the just amount of compensation due therefor; and if those who have violated the plaintiff\u2019s rights are his debtors,-so those who have violated the personal rights of the defendant are his debtors also. We believe, however, no one has yet thought that a garnishee was to answer for his torts against the defendant.\nThe present case does not require of us to say whether a judicial attachment, founded upon a return of non est inventus to an original writ sued out against the defendant, will lie in a case not arising on contract \u2014 (see Rev. Stat. c, 31, s. 56, and c. 6, s. 12,) and therefore we forbear from expressing any opini\u00f3n upon it.\nIt is to be certified to the court below that- this court is of opinion that the attachment was not a proper process to be sued out by the plaintiff in this case, and that the writ ought to be quashed.-\nPer\u2019 CuilIArM-. Judgment' accordingly.",
        "type": "majority",
        "author": "Gaston, Judge."
      }
    ],
    "attorneys": [
      "B. F. Moore and Whitak\u00e9r for the plaintiff.",
      "Badger and, Daniel for the defendant."
    ],
    "corrections": "",
    "head_matter": "AMBROSE MINGA vs. JULIUS H. ZOLLICOFFER.\nAn original attachment cannot issue in this State for any cause of'action arising from tort, but only for those founded on contract.\nThis was a case brought from Halifax Superior Court of Law on an appeal by the defendant from the decision of his honor Judge Hall, made at Fall Term, 1840. The plaintiff sued out an original attachment against the defendant and declared- against him (in the usual form) for an assault and battery, alleged to have been committed by the defendant upon the person of the plaintiff. The defendant having appeared and replevied, moved to quash the writ or dismiss the suit, on the ground that the attachment was not a proper suit or process to be sued out on the cause of action set forth in the plaintiff\u2019s declaration. But the presiding Judge, being o\u00ed opinion that the attachment was a proper process in this case, and was rightfully sued out, overruled the defendant\u2019s motion and ordered him to plead to the action, from which order he prayed, and his Honor allowed an appeal to the Supreme Court.\nB. F. Moore and Whitak\u00e9r for the plaintiff.\nBadger and, Daniel for the defendant."
  },
  "file_name": "0278-01",
  "first_page_order": 278,
  "last_page_order": 280
}