Halley v. Jackson

Brent, J., delivered the opinion of the Court. Pending a motion to quash the attachment in this case, leave was asked by the plaintiff to be allowed to amend the proceedings, by striking out the name of one of the defendants, J. Fenwick Young, “where it appears in the affidavit of the plaintiff, in the warrant of the justice of the peace directing the clerk to issue the writ, in the writ of attachment, and in all the proceedings in the case, so that by said amendment all the proceedings will show and read as a proceeding against Joseph N. Young alone, and as if the name of J. Fenwick Young had not been written and appeared there.” Sections 23 and 27 of Art. 75 of the Code, in relation to amendments and the misjoinder and nonjoinder of defendants, cannot be understood as embracing the amendment here asked for. The affidavit before a notary, and the warrant of the justice to the clerk are from a jurisdiction separate from that of the Circuit Court, and the latter can exercise no power of amendment over them. They lie at the foundation of the proceeding in attachment, which must be strictly followed because the remedy is a statutory one, and if defective, the whole proceeding must fail. If the Circuit Court were to exercise the power of amending the affidavit, so as to accommodate it to the circumstances and facts developed in the progress of a case of attachment, it would cease to be a condition precedent in that form of proceeding, and inconsistent with the spirit and object of the law requiring it to be made by the plaintiff. If it could be amended in one important respect, it might also in another, until its whole character was changed, and the party affiant made to appear as presenting a state of facts different from those actually sworn to. Nor can the warrant of the justice of the peace, directing the attachment to issue, be amended. Most of what [261] has been said in regard to the affidavit, applies to the warrant of the justice. If altered by an amendment it would no longer he the warrant of the officer designated by law, but in reality would he the warrant of a tribunal without jurisdiction to issue it. Whatever might be held in regard to an amendment of the subsequent proceedings, these two are not permissible, and the Court below was right in refusing to allow them to he made. (Decided 26th March, 1878.) The affidavit, the warrant of the justice and the declaration in the short note case, all proceed against the defendants, as if they were jointly bound on the note sued upon. This note, annexed to the affidavit, is not a joint note. While one of the defendants is the drawer, the other is the payee. Cases have been referred to in the argument, where an endorser has been held to he an original promisor — hut these are not cases, where the payee, as in the present case, is the endorser. In the note before us the liability of these defendants is several and separate, and it is error in proceeding against them as if jointly bound. The endorsement by the payee, that he holds himself “ responsible for the within note, without notice or protest,” is of no other effect than to waive protest and notice, as a necessary step to fix his liability in case the drawer fails to pay the note at maturity. The first reason assigned is therefore sufficient ground for quashing this attachment. As we find no error in the action of the Court below in refusing the amendment asked for by the plaintiff, and in granting the motion to quash, the judgment will be affirmed. Judgment affirmed.