contain an allegation that any ground exists, for the reason that the affiant only swears that one or the other of two or more grounds exists, but does not say which one. But this doctrine has no application where the statement contains but two or more phases of the same fact, or different facts of the same nature which constitute a single ground for the attachment. So it has been held that an affidavit is not defective because it states in the alternative different modes of effecting a stated purpose or intent, especially where in so doing it follows the language of the statute. 6 C. J. 136; 2 R. C. L. 833; Sandheger v. Hosey, 26 W. Va. 221; Shinn, At tachm. & Garnishment, § 146; Drake, ➡quashing, Our conclusion therefore is to reverse the decree of the Circuit Court of Mineral County, and remand the cause for further proper proceedings. ANNOTATION. Attachment for goods or money embezzled, stolen, or converted. I. Under statute permitting attachment in action on implied contract: a. General rule, 832. b. Exceptions to rule, 836. III. Under statute permitting attachment 1. Under statute permitting attachment in action on implied contract. a. General rule. In those jurisdictions wherein the statute provides for the issuance of a writ of attachment in actions for debt arising from contracts, express or implied, the courts have generally held that, where money or goods have been embezzled, stolen, or converted, the injured person may waive the tort and sue on an implied contract, and is, accordingly, entitled to a writ of attachment in such an action. United States.-W. D. Reeves Lumber Co. v. Leavenworth (1918) 160 C. C. A. 586, 248 Fed. 686 (Mississippi statute); Nevada Co. v. Farnsworth (1898) 89 Fed. 164, affirmed in (1900) 42 C. C. A. 504, 102 Fed. 573, without passing on this question; (Utah statute). - Arkansas. McCleland v. Linton (1915) 121 Ark. 79, 180 S. W. 482; Judge v. Curtis (1904) 72 Ark. 132, 78 S. W. 746. Colorado. Kansas. Lipscomb v. Citizens' Michigan.-Farmers Nat. Bank v. Fonda (1887) 65 Mich. 533, 32 N. W. 664. Minnesota.-Cole v. Aune (1889) 40 - See supra "United Nebraska.-Hart v. Barnes (1888) 24 Neb. 782, 40 N. W. 322. - New Jersey. Westcott v. Sharp (1887) 50 N. J. L. 392, 13 Atl. 243. Pennsylvania. Mechanics' Nat. Bank v. Miners' Bank (1883) 13 W. N. C. 236; Hanson v. Watson (1883) 13 W. N. C. 534; Piscataqua Bank v. Turnley (1836) 1 Miles, 312. Texas. Hitson v. Hurt (1907) 45 Tex. Civ. App. 360, 101 S. W. 292; Felker v. Douglass (1900) Tex. Civ. App. 57 S. W. 323; Gould v. Baker (1896) 12 Tex. Civ. App. 669, 35 S. W. 708. Utah. See supra, "United States." Vermont.-Elwell v. Martin (1859) 32 Vt. 217. Wisconsin.-Barth v. Graf (1898) 101 Wis. 27, 72 N. W. 1100; Elliott v. Jackson (1854) 3 Wis. 649. In W. D. Reeves Lumber Co. v. Leavenworth (Fed.) supra, it appeared that the defendant company wrongfully entered and cut trees on the land of the plaintiff's testator. It was held that the averments of the declaration showed a state of facts from which could be implied a promise by the defendant to pay for the trees so cut. The court said: "A motion was made to quash the writ of attachment, so far as the plaintiff's demand for the actual value of the timber cut was concerned. Error is assigned on the action of the court in overruling this motion. Under the Mississippi statute the remedy by attachment may be resorted to in any action for the recovery of damages for the breach of contracts, express or implied. The averments of the first count of the declaration showed a state of facts from which could be implied a promise by the defendant to pay the stated value of the trees cut. We think the decisions of the supreme court of Mississippi, construing and applying the statute mentioned, support the action of the court in overruling the motion." In Nevada Co. v. Farnsworth (1898) 89 Fed. 164 (affirmed in (1900) 42 C. C. A. 504, 102 Fed. 573, without passing on this question) it appeared that the defendant, as agent of the plaintiff, paid some of the money intrusted to him according to instructions, and converted the balance to his own use. An attachment was sued out in aid of plaintiff's suit, which was for money had and received. The statute of Utah provided for an attachment in actions upon contracts, express or implied. It was held that the statute was applicable to contracts implied in law. The court said: "In this case it is urged that the statute has mentioned judgments and contracts, express or implied. That the expression 4 A.L.R.-53. of judgments, a species of quasi contracts, shows that the legislature did not intend to include under implied contracts such contracts as are implied in law. In the usual classification of contracts, judgments are classified as contracts of record, and simple contracts are subdivided into express contracts and implied contracts; and I think it was the memory of this classification which caused the framers of the statute to treat judgments as different from implied contracts. There is nothing in the object of the statute which warrants the inference that it was intended to discriminate in favor of the wrongdoer. There is a plain reason why attachments were not permitted in actions sounding in damages, for, if allowed in such actions, property of the defendant might be encumbered in an amount altogether out of proportion to the sum finally recovered. But in assumpsit, where the tort is waived, the sum sued for is the benefit unjustly retained by the defendant, not the damage to the plaintiff, usually more uncertain in amount. Keener, Quasi Contr. 160. There is nothing in the wording of the statute which would warrant a holding that the legislature used the term, 'implied contract,' in other than its usual meaning, or that contracts implied in law were not intended to be included. The weight of authority supports this conclusion." In Crane v. Lewis (La.) supra, the question was as to the validity of an attachment bond. The action in which the bond was given was based on a transaction whereby one McGrew sold to the plaintiff a slave, who subsequently ran away and returned to McGrew, who refused to give him up. The court held that the action was ex contractu, though a tort had been committed, and therefore the attachment was properly issued, saying: "It appears by this petition that the defendant McGrew had not only broken his contract with the plaintiff, but committed a tort in harboring and depriving him of the services of his slave; but we do not understand that his responsibility, incurred by the former, is diminished or merged by an outrage, perhaps a crime, being superadded to it. By the contract of sale warranty against eviction is implied, and although it is true, as a general rule, that the right of the person evicting should have existed before the sale, yet evictions proceeding from the act of the vendor himself at all times give rise to the action of warranty. In this case the retention of the slave by the vendor was a violation of the obligation contracted by the contract of sale, præstare servum habere licere. There being sufficient allegations in the petition to sustain the action ex contractu, we think the court would not have set aside the attachment on the grounds now presented against its legality, had they been urged on a motion to dissolve it. The evidence taken in the original case is not before us; but, from the judgment itself, it is evident that the sale was considered as the basis of the action, for the judgment rendered in the case decrees the sale to be rescinded, and the opinion of the judge in writing contains the grounds on which it was rescinded." In Farmers Nat. Bank v. Fonda (Mich.) supra, it was held that attachment might be issued in an action of assumpsit for money embezzled by a clerk. The court said: "It is not claimed that, where money has been held and appropriated wrongfully, assumpsit will not lie; but the claim is that the Attachment Law only refers to actual and direct contract relations, and does not apply where the contract is made such by legal intendment only. The authorities cited on the argument from our own reports render it unnecessary to look elsewhere, whether implied assumpsit will lie for money actually in defendant's hands, and misused or withheld. The recent case of Farwell v. Myers (1887) 64 Mich. 234, 31 N. W. 128, is in point. There it was held that, where an express contract of sale of goods had been rescinded for the fraud of the purchas er, and only a part of the goods was recovered back, and the remainder had been sold, although a suit would not lie for the proceeds upon the original contract of sale, which had been repudiated, nevertheless the proceeds might be recovered as money received upon a wrongful conversion, and that either trover or assumption would lie. It would not be going very far to hold that the appropriation of these moneys now sued for was a violation of defendant's contract of employment. Under our statutes, there can be no embezzlement by a private person that does not get its definition from a violation of the duties of his employment, which is, between private persons, always a contract relation. A declaration setting out the employment, and the duty of paying over moneys, and a failure to do so, would be a very plain case of suit directly on contract. The fact that the failure has been in some cases made criminal does not destroy its contract relation. But it is sufficient to say that, when the statute gives the remedy in cases of express and implied contract, we have no authority to graft an exception on the statute, and hold that there are differences in implied contracts, and that, where an action of tort will lie, the fact that assumpsit will also lie does not make the case one of contract. This distinction, if attempted, would lead to great confusion. In cases of bailment, there has always been a choice of forms of action, between actions on the case and assumpsit, which is itself really an action on the case. Case lies for breach of duty, and assumpsit for breach of promise. A duty certainly arises out of promises; and the law implies a promise out of most duties. Whatever authorizes the implication of a promise authorizes a suit in assumpsit for its breach. That is the essence of the doctrine of implied assumpsit; and any further refinement on this doctrine would lead to no good end. There is no such equity in favor of wrongdoers that exceptions should be created in their favor. It is rather the duty of courts to hold them subject to process, where the law, by fair construction, reaches them, and we think this case is within its exact language." In Downs v. Baltimore (1910) 111 Md. 674, 41 L.R.A. (N.S.) 255, 76 Atl. 861, 19 Ann. Cas. 644, in sustaining an attachment in an action to recover money which the defendant, while clerk in the register's office, stole and appropriated to his own use, the court said: "The foundation of such an attachment is the averment of an existing indebtedness, so that our inquiry must be, What circumstances or facts will warrant an averment or affidavit of indebtedness? If one buys goods of another, intending to pay for them on the terms stipulated, but failing to do so, he may, if a nonresident or an absconder, be proceeded against by attachment. If, being a resident, he buys goods, not intending to pay for them, or if, after his purchase, he assigns or disposes of his property or is about to do so, with the intent to defraud his creditors, he may be proceeded against in like manner. Why then, if by theft he acquires possession of the goods or money of another, with the intent to defraud such other person, may he not be proceeded against by attachment? Is he any the less, in law or in morals, a debtor, because he has acquired possession of another's goods by violence or trespass, than if he had acquired possession by a contract unmixed with fraud, at the time the contract was made, or by a contract obtained by fraud or artifice on his part? We do not think so." (PIEDMONT In the reported case GROCERY Co. v. HAWKINS, ante, 828), it is held that an officer of a private corporation intrusted with its funds and property, who wrongfully converts the same to his own use, is deemed to have promised to repay the amount embezzled, and thereby to have made himself liable to an action ex contractu within the provisions of the Code which provided for an attachment. In Lipscomb v. Citizens' Bank (1903) 66 Kan. 243, 71 Pac. 583, an action to recover money embezzled by an employee was held to be on contract so as to permit the issuance of an attachment. In Reyer v. Blaisdell (1914) 26 Colo. App. 387, 143 Pac. 385, it appeared. that the defendant had induced all of the plaintiffs, except one, to raise $25,000 for the purchase of certain mining lands which, he said, would cost that amount. He in fact, however, paid only $625, and appropriated the balance to his own use. The plaintiffs sued out an ancillary attachment. Reversing a dismissal of the action and a dissolution of the attachment, it was held that a dissolution of the attachment was a reversible error, as the nature of the action was indebitatus assumpsit for money obtained by fraud. In Moses v. Arnold (1876) 43 Iowa, 187, 22 Am. Rep. 239, it appeared that the defendants took and appropriated to their own use some wheat. The defendant moved that an attachment be discharged on the ground that the cause of action for the conversion was not founded on contract. The court held that the action was partially based on contract, and therefore the attachment would lie. In Cole v. Aune (1889) 40 Minn. 80, 41 N. W. 934, it appeared that the defendant was clerk and, in a sense, a partner in the store of the plaintiff, and, while holding that position, wrongfully appropriated and converted to his own use a large amount of money. In an action to recover the money so appropriated and converted, an order vacating an attachment was made, whereupon plaintiff appealed. The statute provided for a writ to issue when the plaintiff's debt was fraudulently contracted. In reversing the judgment of the lower court, it was held that the action was for a debt within the meaning of the Constitution, and, therefore, the writ would issue. In Hart v. Barnes (1888) 24 Neb. 782, 40 N. W. 322, it appeared that the defendant converted to his own use certain sums of money that were intrusted to him under a contract of employment, to be loaned out, and the proceeds therefrom to be paid to the plaintiff. In reversing the discharge of an attachment, the court held that an attachment would not lie for a tort, but that a person who assumes a duty, and fails to perform either his agreement or that duty, violates his contract, and that an action for that violation is within the statute providing for attachments. In McClelland v. Linton (1915) 121 Ark. 79, 180 S. W. 482, it appeared, among other things, that defendant was given a certain amount of money to purchase land for plaintiff, but used only a part and appropriated the balance to his own use. The court held that an action for the money converted was not one sounding in tort, and therefore attachment would lie. In Mechanics' Nat. Bank v. Miners' Bank (1883) 13 W. N. C. (Pa.) 236, it appeared that the plaintiff had sent a draft to the defendant bank for collection, attaching a slip to the draft, requesting to be notified by telegram on payment. The draft was paid, but the defendant did not notify the plaintiff, but appropriated the money and draft given in payment to its own use. It was held, in discharging a rule to dissolve the attachment, that the appropriation of the money and draft to its own use made defendant liable to attachment. In Hanson v. Watson (1883) 13 W. N. C. (Pa.) 534, it appeared that the defendant entered into a contract with the plaintiff to sell certain goods at a fixed price, but sold them at a lower price because of the falling of the market. In an action to recover for conversion, a rule to dissolve an attachment was made. It was held that, while the action might have been founded on a tort, still the plaintiff might waive the tort and sue on contract, and therefore the attachment would lie. In Hitson v. Hurt (1907) 45 Tex. Civ. App. 361, 101 S. W. 292, it appeared that the defendant converted certain sheep and wool of the plaintiff. The defendant appealed from a judgment for the conversion and the foreclosure of an attachment lien on certain lands. It was held, in sustaining the judgment, that a suit by attachment could be maintained against a nonresident for the conversion of personalty, on the implied promise to pay for the converted property. In Felker v. Douglass (1900) Tex. Civ. App. —, 57 S. W. 323, it appeared that the defendant had converted certain crossties belonging to the plaintiff. A writ of attachment was levied on lands of the defendant. In affirming the issuance of the writ, the court held that where no exemplary damages were claimed, and the plaintiff definitely stated the number and value of the crossties taken, there was an implied promise for the value of the property so taken; and the demand was of such certainty as to form the basis for the issuance of a writ of attachment. In Gould v. Baker (1896) 12 Tex. Civ. App. 669, 35 S. W. 708, it appeared that, while the plaintiff was asleep in a furnished room over a saloon, his money was stolen from under his pillow by the owner and his bartender. Plaintiff sued the owner and the bartender for the amount stolen, and caused the property of the owner to be attached. The defendants moved to quash the attachment, which motion was overruled. The court held, in affirming the judgment, that an attachment would lie against the property of a thief in an action to recover judg ment for the stolen money, brought as for money had and received on an implied contract, the tort being thereby waived and the action being regarded as an action ex contractu. In Barth v. Graf (1898) 101 Wis. 27, 72 N. W. 1100, it was held that attachment would lie in an action of assumpsit against a bank cashier for conversion. b. Exceptions to rule. Where an action is brought for trover or in detinue, and the statute provides for the issuance of a writ of attachment in actions on contracts, express or implied, or on money demands, a writ will not issue. Tabor v. Big Pittsburg Consol. Silver Min. Co. (1883) 4 McCrary, 299, 14 Fed. 636; Babcock v. Briggs (1877) 52 Cal. 502; Sheppard v. Yocum (1883) 11 Or. 234, 3 Pac. 824; Union Bank v. Baker (1847) 8 Humph. (Tenn.) 447. In Tabor v. Big Pittsburg Consol. Silver Min. Co. (Fed.) supra, it appeared that the defendant entered and took from the plaintiff's mine, ore, |