¶1The remedy by attachment is statutory, and cannot be resorted to except in those cases for which it has been expressly provided. The Legislature, in giving the remedy, has not only limited its use, in terms, to certain cau.ses of action, but has further provided that if certain conditions are found to exist in connection with the causes of action named, then, even as to them, the remedy shall not be allowed. To entitle a party to the remedy, he must, therefore, show, not only that he has a cause of action which is named in the statute, but that it is unaccompanied by any of the conditions in view of which the remedy is denied. He must show that his cause of action is upon a contract, express or implied, for the direct payment of money; that the contract was either made in this State, or, if made out of the State, that it was made payable in this State, and that the payment of the money is not secured by a mortgage, lien, or pledge upon real or personal property; or if so secured, that such security has been rendered nugatory by the act of the defendant.
¶2The terms “mortgage,” “lien,” or “pledge” are legal terms, and have been used in their strict legal sense. They have been used without qualification or limitation of any *210kind. Ho particular kind or class of mortgages, or liens, or pledges is designated as intended, nor mentioned as excepted. Therefore, all mortgages, all liens, all pledges, mentioned or defined as such in the books, are necessarily included. Hence, if, in view of the conditions presented by the facts of a case, the law declares that a mortgage or lien, or pledge of any kind known to the books exists, the attachment must be denied, for the statute makes no distinction, and, for that reason, the Courts can make none. What ground is there for saying that any lien is not included ? Is there any more ground for saying that certain liens are not included than there is' for holding that certain mortgages or certain pledges are not included ? It has not been suggested, nor can it be pretended that there is. If, then, the Courts can distinguish between liens, and declare one to be within the statute, and another without, by parity of reason they may do the like in relation to mortgages and pledges, which is to say that they may invert the most salutary maxim by which Courts are governed—jus dicere, non jus dare—and make it read the other way.
¶3I am unable to perceive the force of the reasoning by which it is sought to prove that the right which the vendor of land has to look to the land for the payment of the purchase money has for all time been miscalled a lien by legal writers, Judges, and lawyers, and that it ought to have been called something else. Conceding it to be so, and that this discovery, though late, is substantial, what assurance have I that a like discovery was made by the Legislature at the time or prior to the passage of the Attachment Law, and that, therefore, it was considered to be unnecessary to except vendor’s liens in terms from the operation of the statute ? I am inclined to the opinion that the alleged misnomer, had it been known to the Legislature, is, at least, so far doubtful, that that body, had it so intended, would, nevertheless, have expressly excepted the lien from the operation of the statute, and not incurred the hazard, not only of the Courts discovering the misnomer themselves, but also of attributing to the *211Legislature a like good fortune. I am, therefore, forced to the conclusion that the Legislature by which our Attachment Law was passed was not in advance of the most eminent of our Judges and lawyers, and that if the latter were, at that time, laboring under a mistake, the former was equally unfortunate. From time immemorial the right of a vendor to look to the land as security for the payment of the purchase money has been denominated a lien, and it is very certain that, as yet, the vocabulary of the law does not supply a better appellation, and until it does, the makers and ministers of the law will alike have to. use it.
¶4Hor am I able to perceive the force of the suggestion that a vendor’s lien is an imperfect and uncertain security, and, therefore, ought not to stand in the way of an attachment. Conceding all that is claimed on that score, the result remains the same, for the question is not as to the perfection or certainty of the security, but as to the lieu. It is none the less a lien, because the security which it affords may be of little account in comparison with that afforded by other liens—its inefficiency, as I conceive, cannot be taken as a test of its existence. But I dissent entirely from the suggestion that the security afforded by it is imperfect, or inadequate. While it lasts it is more perfect than a mortgage, for the latter may have been imperfectly executed or acknowledged, while the former is subject to no such hazards. It is as valuable, for it covers the whole land, and is as easily and readily enforced by the Courts. It is not worthless until it has ceased to exist, and when it has ceased to exist- it has also ceased to stand in the way of an attachment.
¶5It cannot be denied that a vendor’s lien is a security for the payment of the money due upon the contract of sale; and such being the case, it must be considered as included in the statute, not only by the terms of the statute, as I have attempted to show, but by the very object and purpose of the Attachment Law; which is simply to afford security for the payment of money due upon contract, where no security exists, and not to afford additional security. The intent to *212afford no security where security already exists is as obvious as the intent to afford security where it does not exist. The existence of security is, therefore, the test of the plaintiff’s right to an attachment, and not the form in which it exists; the form is immaterial, the thing to be considered is the substance—hence the broadest language has been used for the purpose of including every kind and character of security known to the law. The word “lien” is the most comprehensive word which could have been used to express the intent of the Legislature, not to allow an attachment, except in the absence of all security. Every bailee for hire has a lien on the thing for his compensation—the tailor upon the garments which he has made, the ship carpenter upon the ship which he has built, the house carpenter upon the house which he has erected, the agistor upon the horse which he has pastured, and the jeweler upon the gem which he has set—a lien not contracted for, but provided by the law. These liens are included in the statute, and while they exist no attachment can be taken. Are they intrinsically different or better than that of the vendor of land? Are they, in a legal sense, any more perfect or available? Why, on the score of reason merely, independent of the language of the statute, should they stand in the way of an attachment, and the lien of the vendor of land interpose no obstacle ? They, all alike, constitute security, and, therefore, by parity of reason, in my judgment, alike preclude an attachment where they are found to exist.
¶6Entertaining these views, I am compelled to dissent from the conclusion reached by a majority of my associates.