Cumberland Coal & Iron Co. v. Hoffman Steam Coal Co.

Cochean, J., delivered the opinion of this Court. This is an appeal from an order, overruling a motion to quash an attachment, made by the appellant, on the [499] ground that no sufficient cause of action was produced before the magistrate who issued the warrant. We find by examining the proceedings, that the claim is for the sum of §41,000, which the appellee’s account stat.es to be due and owing on a contract thereto annexed, executed by the appellant to Allen M. Sherman, and William B. Dean, in April 1856. The objection on which the appellant founded the motion to quash, raises the question whether it was necessary to show in the statement of the cause of action, an assignment of the contract, to entitle the appellee to the issue of the warrant. The provision of the Code, Art. 10, sec. 4, requires the creditor, or some other person on his behalf, to make oath before the warrant is issued, .that the debtor is bona fid,e indebted to the creditor in the sum claimed, over and above all discounts, and at the same time to produce the bond, account or other evidences of the debt by which the debtor is so indebted. The plain import of this language is that the creditor shall produce not ojily the particular obligation by which the debtor is bound, but also such evidence as is necessary to show at least, a prima facie right on the part of the creditor to enforce its performance. As we understand it, the creditor is bound to show his own right of action as well as the liability of the debtor, in all cases where the creditor’s right does not appear on the face of the obligation sought to he enforced. The question raised bere was discussed in the case of Dawson vs. Brown, 12 G. & J., 53, where it was held, that tbe clause of tbe Act of 1195, ch. 56, re-enacted in the provision of tbe Code referred to, did not require “the production of tbe testimony, qua testimony by which the creditor’s claim is to he established, but the production of bis cause of action, tbe 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 tbe Act of Assembly that [500] by wbicb the debtor is so indebted.”- The cause of action produced here is a contract to which the appellee is not a party, and although it fixes a liability on the appellant, yet there is nothing from which we can find that the appellee had acquired any interest in or right of action upon it. The appellee, even if entitled to the benefit of the contract, could not at Common Law .maintain an action in its own name as plaintiff, nor could it do so now, under our Statute, without averring an assignment of the contract in the declaration, and showing that fact at the trial. The affidavit that the appellant was indebted to the appellee in the sum claimed, appears in proper form, but that was not all that was required; for as we have seen, the evidence by which the appellant was so indebted — that is, indebted to the appel-lee ais set forth in the affidavit, was also to be produced. If in point of fact, the appellee had a written assignment of the contract by which the appellant's liability could be shown, then it should have been produced, and if there was no such assignment, the appellee had no legal cause of action. We think the Court erred in overruling the motion of the appellant, and shall therefore reverse the judgment, and quash the attachment. (Decided June 3rd 1864.) Judgment reversed and Attachment quashed.