Marsh v. Steele, Johnson & Co.

Section 200 of the code of civil procedure provides that “ where the ground of attachment is that the de*101fendant is a foreign corporation, or a non-resident of the state, the order of attachment may be issued without an undertaking. In all other cases the order of attachment shall not be issued by the clerk until there has been executed in his office, by one or more sufficient sureties of the plaintiff, to be approved by the clerk, an undertaking not exceeding double the amount of the plaintiff's claim, to the effect that the plaintiff shall pay the defendant all damages which he may sustain by the attachment, if the order be wrongfully obtainéd.” Gen. Stat., 557.

It is claimed that the provisions of this section are in conflict with see. 2, article IV, of the constitution' of the United States, which provides that “ the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.”

Kent says: “The privileges thus conferred are local and necessarily territorial in their nature. The laws and usages of one state cannot be permitted to prescribe qualifications for citizens to be claimed and exercised in other states, in contravention of their local policy.”

It was declared in Corfield v. Coryell, 4 Wash., C. C., 371, that “ the privileges and immunities conceded by the constitution of the United States to citizens in the several states were to be confined to those which were in their nature fundamental, and belonged of right to citizens of all free governments. Such are the rights of protection, of life and liberty, and to acquire and enjoy property, and to pay no higher imposition than other citizens, and to pass through or reside in the state at pleasure, and to enjoy the elective franchise according to the regulations of the laws of the state. But this immunity does not apply to every right, for some may belong exclusively to resident citizens of the state,” etc.

*102Cooley, in his work on Constitutional Limitations, 397, says: “ Although the precise meaning of ‘ privileges and immunities ’ is not very definitely settled as yet, it appears to be conceded that the constitution secures in each state to the citizens of all other states the right to remove to and carry on business therein; the right by the usual modes to acquire and hold property, and to protect and defend the same in the law; the right to the usual remedy for the collection of debts and the enforcement of other personal rights; and the right to be exempt in person ahd property from taxes or burdens, which the property or persons of citizens of the same state are not subject to. * * * But it is unquestionable that many other rights and privileges may be made, as they usually are, to depend upon actual residence; such as the right to vote, to have the benefit of the exemption laws, to take fish in the waters of the state, and the like. And the constitutional provisions are not violated by a statute which allows process by attachment against á debtor not a resident of the state, notwithstanding such process is not admissible against a resident.”

The constitutional provision must be confined to those privileges and immunities which are fundamental in their nature — such as the right to acquire and hold property, to institute and maintain actions, the exercise of the elective franchise in conformity to the laws of the state in which it is exercised — and was evidently intended to abolish the common law disabilities of residents of the several states, the states to a certain extent being foreign to each other. This provision was not' intended to prohibit distinctions founded on residence, such as the right to hold certain property exempt from execution; the right to fish in the waters of the state; the right to vote, and other rights depending upon residence.

*103The only objection in this ease, and the one on which it is sought to dissolve the attachment, is that “ the said order of attachment was issued without any undertaking in attachment, and is null and void, there being no undertaking in attachment.”

At common law, if the plaintiff made an affidavit that the cause of action amounted to £10 or upwards, he could have caused the defendant to be arrested, and required him to put in special bail for his appearance in the action. 3 Blackstone Com., 287. Imprisonment for debt was not a satisfaction thereof, but a means to procure it. Imprisonment for debt existed in all the colonies at the time of the Revolution, but the law was repealed or modified in most of the states during the second quarter of the present century. As a consequence, the abolition of imprisonment for debt has led to an enlargement of the remedies acting upon the property of debtors, and the statute authorizes an attachment against the property of a non-resident debtor. Mere temporary absence of a party from the state is not sufficient to justify an attachment under this provision; the party must be a non-resident of the state. ■ The writ is issued to secure the appearance of the defendant, and to retain his property within the jurisdiction of the court, to be applied in satisfaction of its judgment to secure the rights of the creditor, as otherwise the property of the debtor could be withdrawn at any moment, and the creditor compelled to go into another jurisdiction, perhaps at a great distance from his residence, to enforce his rights. These are provisions that apply to all non-resident debtors, whether they reside in the United States or foreign countries, and are in consonance with the rule in the administrations of estates, that “ every nation having a right to dispose of all the property actually situated within it, has (as has *104often been said) a right to protect itself and its citizens against the inequalities of foreign laws which are injurious to their interests.” Story’s Conflict of Laws, § 525.

And in relation to the withdrawal of funds it is said: “Persons domiciled and dying in one country are often deeply indebted to foreign creditors living in other countries, where there are personal assets of the deceased. In such cases it would be a great hardship upon such creditors to allow the original executor or. administrator to withdraw those funds from the foreign country without the payment of such debts, and thus leave the creditors to seek their remedy in the domicile of the original executor or administrator, and perhaps there to meet obstructions and irregularities in the enforcement of their own rights from the peculiarities of the local law.” Story’s Conflict of Laws, § 512.

A plaintiff in attachment is liable in damages if he cause the defendant’s property to be attached maliciously and without probable cause; and this liability attaches whether a bond is given or not. But the failure to give a bond when the attachment is against the property of a non-resident is not sufficient ground upon which to base a motion to dissolve the same, and is not in conflict with the constitution of this state or the United States, and was therefore properly overruled. And particularly is this true in the case at bar, where judgment was obtained against the defendant, of which he does not complain, and the order of the court is merely to apply the property to the payment of the debt. The judgment of the district court is clearly right, and is therefore affirmed.

JüDSMENT AEEIRMED.