Handy v. Brong.

extension of it, an omission wholly irreconcilable with the imputed legislative design."

But the ground on which the attachment was asked in the case at bar is, that Handy was about to convert a part of his property into money for the purpose of placing it beyond the reach of his creditors. Hence, the ground on which the attachment was obtained, under the law, involves the existence of the relative character of creditor and debtor; and it seems to be a settled rule that when this relative character of creditor and debtor is used in statutes in respect of parties to actions, the remedy provided by such statutes is confined exclusively to actions

ex contractu.

In Raver v. Webster, supra, it seems that the amended law of 1853, of Iowa, provided that in addition to the causes for which attachments may issue, the writ should be allowed upon the sworn statement of the plaintiff, "that the defendant is about to abscond to the injury of his creditors, or that he has property, goods, etc., not exempt from execution, which he refuses to give either in payment or security of said debt." In that case the jury were instructed that the affidavit set forth no sufficient cause for an attachment, for the reason that this provision applied alone to actions founded on contract. It was held that "the spirit, if not the strict letter of the law, favors this ruling," and that the amendatory act "contemplates that the claim sued on shall be liquidated or ascertained, or one which is susceptible of being rendered certain, without the judgment of a court." And it is further said that it cannot be supposed "that the legislature used the word in any other sense than that ordinarily and appropriately attached to it. And thus construed we understand it to mean to owe, or that which is contracted from debea, to owe-debitum, contracted -that which is due or owing from one person to another; that for which a person is held or which he is bound to

Handy v. Brong.

pay. If a man assaults or beats another; if one shall slander his neighbor, or commit any other act, amounting to a tort or wrong, while he may be answerable in damages, yet we never speak of the amount to which the injured party may be entitled, as a debt."

In Me Donald v. Forsythe, 13 Mo., 551, it is said the "first section of our attachment law provided that creditors may sue their debtors by attachment. The words (creditor and debtor) do not in ordinary acceptation, nor in strict legal parlance, apply to any other class of demands." Elliot v. Jackson, 3 Wis., 649. In IIynson v. Taylor, et al., 3 Ark., 555, it is said that the law "being in derogation of the common law must be strictly pursued. No latitude can be given, calculated to enlarge the remedy, by extending it to cases not embraced by the language adopted by the legislature, fixing the character of the demand upon which suit may be instituted by attachment. Throughout the whole statutory provisions regulating the mode of proceeding by attachment we find the words creditor, debtor, and debt, showing clearly that the relative character of creditor and debtor must have existed at the time; and that the remedy is confined exclusively to actions ex contractu; and that by no reasonable construction can it be made to apply to torts."

And in Minga v. Zollicoffer, 2 Ired., 279, the language used is, that "neither in common parlance, nor in legal proceedings, is a mere wrong-doer designated as a debtor, nor his responsibility for the wrong classed under the denomination of debts. Debts are the creatures of contracts, and the language of these acts must be exceedingly strained to bring within their operation claims arising not from contract, but from tort." In a very considerable research through the books, I have been unable to find an authority which would warrant a construction of our attachment law, different from the rule enunciated in the authorities which I have so fully cited, except the excep

Handy v. Brong.

tional case of Davidson v. Owens, 5 Minn., 72, and in this case the court say that "no state has gone to such an extent as ours, for while other states confine the writ to actions ex contractu, Minnesota has overstepped the bounds of precedent, if not indeed of prudence, and allows its issue upon proper showing in all actions for the recovery of money, commenced in the district court, without ever making a distinction between actions in tort and those arising on contract." And in this case, it seems not only to be conceded that the state has overstepped the bounds of precedent, but perhaps also the bounds of prudence, and this is all that need be said with respect thereto. I think no well sustained authority can possibly be found which would favor the issuance of an attachment in an action for tort, upon the bare, uncertain estimate of the plaintiff himself, and under no circumstances without some direct, express statutory provision, clearly allowing such extraordinary proceeding under the necessary restrictions. It certainly would be a dangerous practice, and might lead to great abuse.

One illustration is sufficient. A plaintiff could sue the defendant in action for tort, estimating the damages at thousands of dollars, and by attachment, levy upon the personal property of the defendant to the full amount of the estimate he makes, and hold such property a long time, but when his suit is tried it is clearly shown that he had no cause of action whatever; such proceeding might damage the defendant in such a way that no judgment for money could compensate him. So upon authority as well as uponp rinciple, our attachment law cannot be construed to extend to actions for tort, and therefore the judgment of the district court, in over-ruling the motion to discharge the attachment, must be reversed, the motion sustained and judgment be entered that the

Palmer v. The People.

attachment be discharged, and cause remanded for further proceedings.

REVERSED AND REMANDED.

MAXWELL, J., concurred. LAKE, Ch. J., before whom the cause was tried below, did not sit.

ORTIGAL N. PALMER, PLAINTIFF IN ERROR V. THE PEOPLE OF THE STATE OF NEBRASKA, DEFENDANT IN ERROR.

1. Practice in Criminal Cases: CHALLENGE OF JURORS. Under the provisions of the criminal code of 1873, it is not error to permit a juror to sit in a cause, who, although on oath says "he had an opinion and expressed an opinion," also says, he "could render an impartial verdict upon the law and the evidence." The record disclosing no basis for the opinion, it will be presumed that the court was satisfied that it was merely hypothetical, and not one calculated to bias the juror.

2.

3.

4.

: EXHAUSTING PEREMPTORY CHALLENGES. A party waiving his right of peremptory challenge, cannot complain of the disqualification of a juror, known to exist at the time of the impaneling.

- SETTING ASIDE VERDICT. A verdict without evidence to support it, should be set aside; but if the evidence is conflicting, and the issues fairly submitted to the jury, the verdict should not be disturbed.

-: ARGUMENTS OF COUNSEL. If an attorney for a prisoner voluntarily waives his right to argue the case to the jury, he cannot, after they have retired to consider their verdict, insist as a matter of right to have the jury recalled for the purpose of hearing such argument.

ERROR to the district court.of Pawnee county.

The plaintiff in error was indicted at the October term, A. D. 1873, of the district court of Johnson county, with George W. Waldo, and Celeste Randall, for the murder of George G. Randall in March, 1873. A change of venue was granted, and the cause transferred to Pawnee county. The plaintiff in error made application to the court for a separate trial, which was granted, and the

Palmer v. The People.

cause tried at a special term of court held in Pawnee county during the month of February, 1874. The jury returned a verdict of manslaughter, and fixed the imprisonment of the plaintiff in error, in the penitentiary, at one year. The cause came to this court by writ of error. The trial in the court below occupied several days, and all the evidence contained in the record brought here, is comprised in a bill of exceptions, numbering one hundred and fifty pages. It is impossible to give anything more than the following brief statement of the evidence.

George G.. Randall, the deceased, a resident of Johnson county, left his home on the 18th day of March, 1873, being last seen alive on that day by several witnesses, and in June following his body was found in a slough or ravine, some seven miles from his place of residence, and west thereof, in an advanced stage of decomposition, the flesh being nearly gone, and the skull bare. The body lay in a hole some two or three feet deep, one hand across, a gun and stick lying on the body, the skull detached, and part of the cranium broken away. The deceased had on clothing identified as that of his brother, and a pistol or revolver lay under his head. Evidence on the part of the state tended to show that the prisoner had criminal intimacy with the wife of the deceased, and that there had been a difficulty about the matter, the prisoner promising to remain away from Randall's house; that deceased was last seen alive by several of his neighbors, near his house, between eight and nine o'clock of the forenoon of March 18, 1873; that Waldo and the prisoner were both there in the afternoon, the former having borrowed a pistol of Embrie which he offered to return next morning, but did not return until the following week; that Mrs. Randall left the house that afternoon going with the prisoner and Waldo to Ellis's, a neighbor; that the prisoner and Waldo were seen near Palmer's house next day, asleep, or feigning to be so, beside a straw pile;