Fellows v. Miller

Dewey, J.

Hood and Gray sued out a writ of foreign attachment against Miller, and had several persons summoned as garnishees. Fellows and Co. filed, under the attachment, a claim against Miller, purporting to be supported by the affidavit of one of the firm, made before a justice of the peace in Kentucky. They also filed a bond, the penalty of which was more than twice the amount of their claim. Hood and Gray moved the Court to dismiss the claim of Fellows and Co., and the motion was granted, whereupon they dismissed the whole proceeding. Fellows and Co. excepted to the dismissal of their claim, and took an appeal to this Court. They *232 were the only creditors who made a claim under the attachment, except the attaching creditors.

The question is whether the claim of Fellows and Co. was correctly dismissed?

Two objections to the legality of their proceedings have been made, which cannot be sustained. One is, that the bond filed by them was not legal, because its penalty exceeded double the amount of their claim; and the other is, that the affidavit of their claim was made by one of themselves, and not by a disinterested witness. The statute of 1838," which governs this case, requires a bond from the attaching creditor, and any other creditor claiming under the attachment, “in double the sum demanded.” R. S. 1838, pp. 72, 80, 81. This provision was made for the benefit of the debtor; and its object is attained by a bond the penalty of which is more than double the amount claimed; though were the penalty less than double the amount, the bond would be objectionable. As 1,0 the other objection, the second section of the statute provides that, before a writ of foreign attachment shall issue, “ the nature of the debt or demand certain, and the sum claimed, shall be proved by oath or affirmation, to be justly due and owing,” and the sixth section enacts that “ creditors other than the plaintiff shall be permitted to file and prove their claims, by filing the affidavit and bond required in the second section.” R. S. 1838, pp. 80, 81. We think that, for the purpose of issuing the writ, and filing a claim under it, the oath of the creditor himself is all that is contemplated by the statute; and that the paper filed by Fellows and Co. as an affidavit is not objectionable on account of its being sworn to by one ofithe firm.

There is, however, a defect in the proceedings by Fellows and Co. which justified the Court in dismissing their claim. The paper filed by them as an affidavit purported to be sworn to before a justice of the peace in Kentucky. There was no evidence that a justice of the peace of that state is authorized by law to administer an oath; and we can presume nothing as to his powers. See Doughton v. Tillay, 4 Blackf. 433 . The record, therefore, does not show that Fellows and Co. really filed any affidavit at all. Their claim was correctly dismissed;

R. A. Chandler, for the appellants. R. C. Gregory and D. Brier, for the appellees.

Per Curiam.

The judgment is affirmed with costs.