EDMUND DIDIER vs. Washington Kerr.-December, 1842.
The affidavit under the act of 1795, chap. 56, to authorise the issuing of a warrant to the clerk of the county court, for an attachment to compel the appearance of an absent or absconding debtor, is insufficient, if purporting to be made by the attorney in fact of the creditor.
APPEAL from Baltimore county court.
This was an Attachment, to compel the appearance of the appellee, commenced on the 4th May, 1839. The warrant was founded upon the deposition of "Henry Didier, attorney in fact of Edmund Didier," and was returned levied upon certain real property in the city of Baltimore. The writ against the appellee was returned non est. Judgment of condemnation was entered at the same term, when the appellee moved the court to quash the attachment, because the account on which the order to issue the same was granted, is not verified by the oath of the plaintiff himself, but by a pretended attorney in fact. At January term, 1841, the county court struck out the judgment of condemnation, and quashed the writ of attachment. The plaintiff appealed to this court.
The act of 1795, chap. 56, sec. 1, provides, that the creditor may make application for an attachment to any judge, &c., "and on the oath or affirmation of such creditor, made before any, &c., that the said debtor is bona fide indebted to him, in the sum, &c., over and above all discounts," &c., the judge, &c., shall issue a warrant for an attachment, &c.
The cause was argued before BUCHANAN, C. J., Stephen, ARCHER, DORSEY, CHAMBERS and SPENCE, J.
By R. JOHNSON for the appellant, and By J. MASON CAMPBELL for the appellee.
ALLOWANCES.
53 See Evidence, 18, 19, 40, 41. Practice in equity, 36, 40.
1798, ch. 101. Surviving husband, administrator of wife,
83 Trusts and trustees, 2, 3, 4, 5, 8. AMENDMENT.
1798, ch. 101, s. ch. 2, sec. 9. Caveat. 11th sec., Appeal. s. ch. 15, sec. 19, See Pleas and pleading, 1, suspension of proceedings, 1804, ch. 55, sec. 3. Removal of crim-
inal causes, 1805, ch. 65, sec. 49. Removal of crim.
See Practice in equity, 45, 46. 257 APPEAL-APPELLATE COURT. 1810. ch.34. Nuncupative wills, 192 1. Since the act of 1830, ch. 185, an or- 1816, ch. 89. Lottery. V. and G. of Was. College, 18 1817, ch. 154. of, 1820, ch. 161. Practice in equity, 83 1820, ch.161. Time of final hearing477 1821, ch. 46. Lottery. V. and Ğ. of St. John's College,
der of the court of Chancery, which is not a final decree, nor in the na- ture of a final decree, does not au- thorise an appeal. Clagett vs. Craw- ford, 275
Under the act of 1826, ch. 200, sec- 6, upon an appeal from the court of Chancery, the record must be trans.
proof to control or alter the terms of the submission, nor the depositions of the arbitrators to show the char- acter of the items of which the award was composed, or that they had de- cided upon a matter before the refer- ence finally adjudicated, and so not within the submission. . Ib. Where the county court set aside an award, and their decision upon ap- poal is reversed, there being no ob- jection to the award on its face, nor any thing in the record to impeach it, this court will enter judgment in conformity to it. ть.
ARREST OF JUDGMENT.
See Motion in arrest,
ASSIGNOR AND ASSIGNEE.
mitted to this court within forty days from the entry of the appeal, other- wise the appeal will be dismissed on motion. Prout, et al, vs. Berry and wife, 285 3. The clerk of the court is not autho rised to strike out a judgment and re- instate a cause,except by order of the court; though he may have been so directed by act of Legislature. 4. Pending a caveat to a nuncupative will appointing an executor, the or. phans court granted letters of admin. istration pendente lite. After this, the caveat was overruled, and the will established bythe orphans court. The caveators appealed. This sus- pends all further proceedings before the orphans court, and while it is un- decided, that court cannot proceed 1. The declarations of the assignee of to grant letters of administration. Offutt and Clagett vs. Gott, 5. Appeals from the orphans court are heard and determined at the term to which the appeal is taken. Ib. 6. An appeal will lie from the judg ment of the county court setting aside an award. State, use, &c., vs. Stewart and Gross, 456 7. Where the plaintiff, in an action to recover a forfeiture, erroneously deemed it essential to give notice to the defendant not to part with the thing forfeited, evidence for that purpose improperly admitted by the county court, is not such an error as will induce this court to reverse the judgment upon appeal. It did the ap- pellant no injury. Doyle vs. Com. missioners of Baltimore County, 484 8. Where the court cannot grant the entire prayer as made, though a por- tion of it in a separate, distinct form, might have been given, it is not error to reject the whole. See Case stated.
Practice in equity, 22, 29. Practice, 2, 5.
ARBITRATION.
a bond of conveyance, made while it was in his possession, and while he was the holder thereof, are evi- dence against a subsequent assignee of the same bond, who claimed title under the person who made such declarations. Clary vs. Grimes, 31 See Court of Chancery, 12, 13.
ATTACHMENT TO COMPEL
APPEARANCE AT LAW. 1. By the act of 1795, chap. 56, scc. 1, an attaching creditor, at the time of making the preliminary proof of his claim, in order to procure a warrant for an attachment, is required to pro- duce "the bond or bonds, bill or bills, "protested bill or bills of exchange, "promissory note or notes, or other "instrument of writing, account or "accounts by which the said debtor "is so indebted. Held-
It was not intended that the creditor Ib. should be bound to produce before the judge or justice, all the written evidence which may be in his pos. session, and which might be used before a jury to establish the debt, and entitle him to a condemnation of the property attached. Dawson vs. Brown,
1. An appeal will lie from the jndg- ment of the county court setting aside an award. State, use, &c., vs. 2. Stewart and Gross, 385
2. Where a cause had been referred to arbitrators, with power to decide all matters in controversy between the plaintiff and defendant, and the arbi- trators had returned an award, sub- ject to no exception upon the face of it, upon a motion to set the award aside, the court will not receive parol
In an action against an endorser, it would be sufficent to produce the note endorsed by him. . lb. 3. So in an action upon an agreement containing dependent covenants, the production of the agreement would suffice. Ib.
So for the recovery of an open ac- count, or for matters and things pro- perly chargeable in account, though
the creditor has written orders for each item,he need not produce them, nor more than his account, to the justice. Ib. 5. The act does not require the pro duction of the testimony qua testi- mony, but of the cause of action. The account, bill, bond, &c., on which a declaration would be fram- ed, and by which the debtor is so indebted. Ib. 6. The creditor in making his prelim. inary proof. for the notes of his debt- or, is bound to produce them; but where his claim arises upon the draft of his debtor on him, paid, the drafts
ion with the affidavit to which it is appended, with a view to show that the particular facts demanded by the act of 1795, really exist in the case made by the documentary proof. Ib. 10. The affidavit under the act of 1795, chap. 56, to authorise the issuing of a warrant to the clerk of the county court, for an attachment, to compel the appearance of an absent or ab. sconding debtor, is insufficient, if purporting to be made by the attor ney in fact of the creditor. Didier vs. Kerr,
are but testimony, and need not be See Practice in equity, 42. produced at that time.
7. Where the affidavit and account, See Arbitration. filed by the creditor, warrant an at-
tachment for a sum of money, but BALTIMORE AND OHIO RAIL not for the whole amount claimed, ROAD COMPANY.
it is irregular in the justice to award See Fines and forfeiture.
the attachment for a greater sum
than is properly established under
the act of 1795; but it is not such See Taxes, 2 to 7, 14.
an error, the case is not so entirely
corum non judice, as to authorise the BANK NOTES CONSIDERED county court, upon the appearance
of the garnishee, to quash the at- See Gaming.
tachment. 8. The act of November, 1795, ch. 56, directing the manner of suing out attachments against absent debtors, in its 2nd section enacts, that the oath or affirmation of a creditor made
BETTING ON ELECTIONS. See Gaming.
BILLS OF EXCHANGE AND PROMISSORY NOTES.
as aforesaid, before a judge of any 1. other of the United States, (than Maryland,) shall not be good and sufficient evidence, unless there be thereto annexed a certificate of the clerk of the court of which he is judge, or of the Governor, Chief Ma. gistrate or Notary Public of such State, that the said judge hath au- thority to administer such oath or affirmation. HELD-that a literal compliance with the law in relation to the certificate was not required, and where the Governor of a State certified that the judge before whom the affidavit of debt was made, was a judge, that his attestation is in due form of law, made by the proper offi. cer, and full faith and credit are due to all his official acts; this was deem. ed a substantial compliance with the act of 1795, and sufficient. Wash- ington vs. Hodsgkin, 353 9. In determining the sufficiency of the Governor's certificate in such cases, it will be construed in connex-
Promissory notes, dated 10th March 1814, at sixty days, were discounted for the ase and accommodation of the second endorser, the prior parties being only securities. Suits were brought upon them by the holder against the securities in 1815, and judgments obtained against them in September, 1816. They were paid on the 20th August, 1818, more than three years after the maturity of the notes. The second endorser died in April, 1814. Held,--that as respects the accommodation endorser, the running of the statute was suspend. ed by the suit brought against him, and the judgments obtained thereon, and that the payment made by him on the 20th August, 1818, by coer- cion of law and under fi. fa., gave him a right to be re-imbursed out of the real estate of his principal, upon a bill filed by him in 1819 against his heirs, and to which the statute of limitations opposed no bar. Hall's administrator vs. Creswell,
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