Babcock v. Briggs
Synopsis
Wbit of Attachment.—A writ of attachment will not lie in an action to recover from the defendants money which the plaintiffs entrusted to their clerk, and which the defendants won from him in gambling.
Injured party may waive tort, and sue in assumpsit. (Fratt v. Clark, 12 Cal. 90; Roberts v. Fvans, 43 Cal. 382; Tuite v. Wakelee, 19 Cal. 692; Caussidiere v. Beers, 2 Keyes, 198; Civil Code, sec. 1621.)
Cope & Boyd, for Respondents.
The action is not upon a contract within the meaning of the statute. (Code of Civil Procedure, secs. 537, 538.) The gravamen of the action is a tort—a wrongful conversion of the property and money of the plaintiffs. There is no allegation of any promise or undertaking on the part of the defendants, and the idea of a contract is expressly negatived by the averments of the complaint.
By the Court : The facts stated in the complaint do not make a case which would support a writ of attachment under the provisions of the Code of Civil Procedure.
Order affirmed. Remittitur forthwith.
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