Didier vs. Kerr.-1842.

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.

STEPHEN,

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.

BY THE COURT

JUDGMENT AFFIRMED.

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-

385

257

inal causes,
1805, ch. 65, sec. 49. Removal of crim.

inal causes,

ANSWER IN EQUITY.

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,

Lottery grants, effect

19

18

2.

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.

Ib.

385

3.

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.

Evidence, 1, 10.

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

53

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.

4.

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,

AUDIT.

are but testimony, and need not be See Practice in equity, 42.
produced at that time.

Ib.

AWARD.

7. Where the affidavit and account, See Arbitration.
filed by the creditor, warrant an at-

499

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

BANKS.

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

AS MONEY.

of the garnishee, to quash the at- See Gaming.

Ib.

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,

36