Hathaway v. Davis

By the Court, Sanderson, J.: This is an appeal from an order denying a motion to dissolve an attachment. The action is against sureties on an appeal bond, which is in the ordinary form of an undertaking on appeal where a stay of proceedings is sought. It contains two premises. 1st. “ That the appellant will pay all the damages and costs which may be awarded against the defendant on the appeal, not exceeding three hundred dollars;” and, 2d. “ That if the judgment appealed from, or any part thereof, be affirmed, the appellant shall pay the amount directed to be paid thereby, or the part of such amount, as [166]to which the same shall he affirmed, if affirmed only in part, and all damages and costs which shall be awarded against the appellant upon the appeal.” The question presented is whether this undertaking is a “ contract for the direct payment of money” within the meaning of the one hundred and twentieth section of the Practice Act relating to attachments.

The language of the statute is that a plaintiff may have an attachment “ in an action upon a contract, express or implied, for the direct payment of money,” etc.

So far as we are advised this precise language is peculiar to our statute. We do not find it, nor language substantially like it, in the statutes of any other State to which our attention has been called, and we find no little difficulty in coming to a satisfactory conclusion as to the precise meaning which the Legislature intended to convey by its use. It is very clear that the cause of action . must be for the recovery of money only, and must arise out of contract, either exprése or implied; and it is equally clear that an attachment is not allowed in all cases arising out of contract where compensation in money can be recovered. It is further apparent that the distinguishing features lie in the words “ direct payment.” The defendant must have contracted for the “ direct payment of money,” or his goods cannot be attached. But what does “direct payment” mean?—or what does indirect payment mean ? Whoever undertakes to answer these questions in a manner at all satisfactory to himself will first come to the conclusion that the Legislature has expressed its will in language not a little obscure. The Legislature is said to employ words not technical in their ordinary and popular sense.

What meaning would the unprofessional man give to the words in question ? As to the word “ payment,” he would answer promptly: “it is the delivery of money by one person from whom it is due to another person to whom it is due,” but when he undertakes to draw the distinction between a direct and an indirect delivery of money he will not answer so readily, if at all. “ Direct ” means straightforward, not crooked, not winding, not circuitous, not side