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

Attachment: Code, Abt. 10, Sec. 4, Construction ok Evidence. — The plain import of the language of the Code, Art. 10, sec. 4, is that the creditor applying for a warrant for an Attachment, shall produce not only the particular obligation by -which the debtor is bound, but also such evidence as is necessary to show, at least, a prima fade right on the part of the creditor to enforce its performance. 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 be enforced. -:-: -: Assignment of Cause oe Action to be averred and proved. — Where the cause of action produced on the part.of the plaintiff, was a contract to which the plaintiff was not a party, and although the contract fixed the liability of the defendant, it did not appear that the plaintiff had acquired any interest in or right of action upon it, — the plaintiff, 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 the Statute law of this State, without averring in the declaration an assignment in writing of the contract, and showing that fact at the trial.

Appeal from tbe Circuit Court for Allegany County: Attachment on warrant, issued on tbe 22nd day of October 1862, at tbe instance of tbe appellee, against tbe appellant. Tbe appeal is from an order overruling a motion to quash tbe attachment, made by the appellant, on tbe ground of the insufficiency of -the alleged cause of action produced before tbe Justice of the peace by whom the warrant was issued. Tbe facts of tbe case are sufficiently stated in tbe opinion of this' Court. . Tbe cause was argued before BaRTOL, GI-oldsboroug-h and COCHRAN, J. The reasons assigned by tbe appellant, for tbe quashing of tbe attachment, amount in fact to this: that no evidence was produced before tbe Justice who issued the warrant, authorizing tbe attachment, to show any ownership or interest in the agreement, the .cause of action produced on tbe part of tbe appellee, who instituted the suit; nor has any such paper or assignment been filed either in the attachment cause, or in tbe accompanying action of debt instituted therewith; nor does any such appear in the record. Consequently the said justice had no jurisdiction of the cause, nor right under our attachment laws to authorize or require the issuing of such writ. The attachment system, giving a summary remedy, and often operating most onerously on the rights of absent parties, like all similar remedies, must be carefully and strictly pursued; and a party seeking to avail himself of it, must not only bring himself fully within its provisions, as to the evidence of his claim produced before the Justice, but must also be careful that all the proceedings come clearly up to its requirements. Shivers vs. Wilson, 5 H. &J., 130. Weaver vs. Balizell & Davidson, 6 (I. & J., 335. Brown vs. Somerville, 8 Md. Hep., 444, 460 and 461. The right of the Court to quash an attachment irregularly issued, is established by the provisions of Art. 10 of the Code of Public General Laws, as is the right of appeal from its decision thereupon, which is expressly given by sec. 22. But this was clearly decided in the case last referred to, and by the case of Bruce & Fisher vs. Cook, 15 Md. Hep., 345, and Gover vs. Barnes, 15 Md. Rep., 576. A plaintiff in attachment must produce before the magistrate on whom he calls for a warrant authorizing an attachment, in order to give such magistrate jurisdiction of the case, and the right to issue his warrant, such evidence of his right or demand as would be sufficient of itself when proven as made, to authorize a judgment therefor against the party charged; not all the evidence which may exist, but sufficient evidence to warrant a judgment in his favor on the same cause of action upon which the suit is based. Mere possession of the agreement was not sufficient, the statute requiring an assignment in writing, in order to empower the plaintiff to sue in its own name, and to justify any recovery under it, proof of its ownership being requisite. ‘‘Where a special limited jurisdiction, distinct from and not embraced by its general jurisdiction, is conferred by Act of Assembly upon any tribunal, its power to act as it has done, must appear upon the face of its proceedings.” Boarman vs. Israel & Patterson, 1 Gill, 372. The Justice must have some evidence of the right of the party to sue on the cause of action produced; and where such evidence consists of a written assignment, it must be produced and annexed, or its existence asserted, and its absence satisfactorily accounted for, in a legal manner; otherwise the proceedings are coram non. Dawson vs. Brown, 12 G. & J., 53-59. Lee et al. vs. Tynges, 7 Md. Rep,, 215, 229. Smith vs. Gfreenleaf, 4 H. & McH., 291. The plaintiff in the attachment presented before the Justice their account and an agreement. The account with the affidavit was alone sufficient; the agreement was only part of the evidence by which at the trial the attachment was to be sustained. A motion to quash is like a demurrer; it admits the truth of the account. If the account be true, — and the affidavit says it is, — it complies strictly and literally with the requirements of our attachment laws; otherwise no attachment could he issued on an account. Whether the attachment could he sustained by evidence to be produced at the trial, could not be tried on a motion to quash. It was not necessary to produce that evidence before the Justice.