Dawson v. John A. Brown & Co.

Dorsey, J., delivered the opinion of this court. To sustain the judgment of the county court, quashing the writ of attachment issued in this case, a number of the deci [59] sions of the courts in Maryland have been referred to, in all of which it is apparent, that the requisitions of the acts of Assembly in relation to attachments had not been complied with, and that the judge or justice before whom the proceedings were had, possessed no power to order any writ of attachment to issue thereon. And such, it is alleged, was the condition of the justice who directed the issuing of the writ before us. The objection taken to the proceedings before the justice, is the omission of the appellants to exhibit before him the notes and drafts referred to in their account. Whether this objection be well founded or not, depends upon the true construction of that part of the first section of the act of 1795, chap. 56, which requires the creditor, at the time of making his affidavit as therein directed, to produce “ the bond or bonds, bill “ or bills, protested bill or bills of exchange, promissory note “or notes, or other instrument or instruments of writing, ac- “ count or accounts, by which the said debtor is so indebted.” We do not give to this requisition of the act of Assembly that interpretation which the argument of the appellees would impose on it, to wit, that the creditor is bound to produce before the judge or justice, all the written evidence which may be in his possession, and which might be used before a jury to establish the debt, and entitle him to a condemnation of the property attached; as for example, if the attachment, applied for, were against the endorser of a promissory note, and the creditor, the endorsee, were possessed of the written acknowledgment of the endorser, that the endorsement wras in his hand writing, that the demand for payment had been duly made, and he notified of non-payment within the time prescribed by law, it would not be necessary to produce such acknowledgment before the judge or justice awarding the attachment; the production of the endorsed promissory note would be all that would be required; and if in the case of an agreement containing dependent covenants, as if A covenants to pay B a sum of money upon B’s delivering to A, of certain specified articles, and B delivers the articles to A and takes his receipt therefor, upon an attachment against A, the receipt need not be pro [60] duced; the exhibition of the agreement itself being a sufficient compliance with the requisition of the act of Assembly. So if an attachment be required on an open account, for goods sold and delivered, money had and received, paid, laid out and expended, or money lent and advanced, and the creditor had the debtor’s written orders for every item charged in the account, their production before the judge or magistrate is uncalled for by the act of Assembly. It requires not the production of the testimony, qua testimony, by which the creditor’s claim is to be established, but the production of his cause of action, the account, bill, bond, note or instrument of writing, on which a declaration would be framed, as his cause of action, being in the language of the act of Assembly, “that by which “the said debtor is so indebted.” Apply this doctrine to the case before us, and it deprives the magistrate of all power to have issued his warrant for an attachment for that part of the account which relates to the notes not produced before him; not so, however, as to the drafts. They form not the creditor’s cause of action, and could not be declared on as such. They are but testimony, by which, in connexion with other proofs, certain items in the account may be established. For all that part of the account, therefore, not founded on the notes, the proof is sufficient to have warranted the justice in awarding an attachment. Does the issuing of an attachment for a larger sum than the creditor by his cause of action has shown to be due, nullify the whole proceeding ? is the question we are called on to decide. The authorities referred to have no bearing upon this question. In all of them it was manifest, that by reason of a non-compliance with the requisitions of the act of Assembly, the judge or justice had no authority for issuing an attachment for any amount, and therefore the writs of attachment w'ere quashed, as being coram nonjudice. In the case at bar, we think the magistrate had power to have ordered an attachment; there is error for all that portion of the appellant’s claim, dependent on the notes referred to in his account. There is error then in nothing but in the amount for which it issued. By quashing the writ in such a case, [61] much greater injustice would be inflicted on the creditor, than sustaining the writ would visit upon the debtor. The process is issued but to compel the debtor to appear to the suit instituted against him; and if injured or oppressed by an excessive seizure and detention of his property, his means of relief are immediate, and entirely within his own control. There is no danger therefore of any serious evil resulting from sustaining the writ of attachment in such a case. With as much justice and propriety might it be urged, that if on a trial with the garnishee, the plaintiff fails to recover the entire amount by him sworn to before the justice, he shall recover nothing, and the writ of attachment shall be quashed; or that if a bail piece be taken on the plaintiff’s oath, as to the amount of his debt, for a larger amount than shall be recovered on the trial, that an exoneretur shall be entered thereon. We are aware of no principle or analogy of the law, which requires the quashing of the writ of attachment issued in this case for the cause assigned. JUDGMENT HE VERSED AND PROCEDENDO AWARDED.