Smith v. Greenleaf

<p>Attachment on warrant under the act of 1795, ch. 56. The warrant was from tiie Hon. Gabriel Duvall, one of the judges of this court, and is as follows, viz.</p> <p>Maryland, sc. Whereas William Smith of Boston, in the county of Suffolk, and Commonwealth of Massachusetts, merchant, on the 15th day of November 1797, before Samuel Barrett, Esquire, one of the judges of the court of common pleas in and for the'county of Suffolk, in the Commonwealth of Massachusetts, made oath according to the act of the general assembly of the state of Maryland in such case made and provided, that James Greenleaf of tbe city of Philadelphia, in the Commonwealth of Pennsylvania, Esquire, is bona-fide indebted to Mm the said William Smith, in the sum of eighteen thousand dollars current money of the United States, (equal in value to the sum of 6.750Z. current money of the state of Maryland,) over and above all discounts: And whereas the said William Smith also then and there produced to the said judge the promissory notes by which the said James Greenleaf is so indebted, and which are hereunto annexed: And whereas also the said William Smith further then and there made oath as aforesaid, that he is credibly informed, and verily believes, that the said James Greenleaf is not a citizen of the state of Maryland, and that he doth not reside therein. All which appears by the certificate under the hand and seal of the said Samuel Barrett, and the certificate of the governor of the Commonwealth of Massachusetts, under the public seal thereof hereunto annexed. These abb thebeegre, in tita name of the state of Maryland, to authorise you to issue an attachment or attachments, in the name of the said William Smith, against the lands and tenements, goods, chattels and credits, of the said James Greenleef; he the said William Smith, complying with the requisites of the act of assembly in that case made and provided; and for so doing this shall be your suilicient warrant. Glvon under my hand and seal this second day of June, in the year of our. Lord one thousand seven hundred and ninety eight.</p> <p>G. Bitv Aim, (i. s.)</p> <p>To John Giyhm, Esquire, clei’k of the General</p> <p>Court íbr the western shore of Maryland.’-’.</p> <p>The writ of attachment was' returned by the sheriff. Laid as per schedule, Ac. to October term, 1798, and by agreement of the parties, (the (lefondanf having been permittod to appear,) the case was conünued until this term, when</p> <p>moved to quash the writ of attachment and the return. " He said, that on the 2d of June 1798, his honour Judge Dwrail, by liis warrant, directedthe clerk of this court to issue the writ of attachment in this case under the act of 1795, eh. 56, which act, lie contended,' does not authorise the writ as issued. The causes of action appear to he three promissory notes, one drawn by James Greenleaf, payable to and endorsed by Daniel Greenleaf, for $ 10,0.00; another drawn by James Green leaf pay able to and endorsed by 'Daniel Greenleaf, for $ 2000; and the other drawn by James and Daniel Greenleaf, payable to and endorsed by T, Danis, for $6000. -''here is no proof that William Smith, the plaintiff, is entitled to receive the nioney. The endorsements on the notes are in blank, and the hands writing of neither the drawers nor endorsers are proved. That ’the endorsements in blank are riot sufficient, they should he filled up, and the hand writing of the payee must be proved, before the attachment could bd awarded.</p> <p>Admitting this to be sufficiently proved, yet the affidavit before Samuel Barrett, a judge of the court of common plea’s in Massachusetts, is not sufficient. If the affidavit is made out of the state it ought to be before a judge of the general or superior court of the state where it is made, and not before a judge of an inferior court. Mr. Barreit. is a judge of a county court, and not a judge of the state. He is only a judge of a district within the state.’ The act of assembly says the oath shall be made “before any judge of any other of the United States,” thereby meaning that it shall be taken before a judge of the highest court of the state.</p> <p>contended, that the oath of tile party was the principal ground on which the attachment issued.’ That it was only necessary to produce the instruments of writing themselves, upon which the claim was’foiftwled; arid an' officer, when applied to for a warrant, could not require more proof of the claim than was requisite on a-writ of inquiry of damages. It was not necessary to prove the hand writing. The oath was only required to shew that no payments had been made, or if made that they were credited. An endorsement may bo filled up at any time, and the judge was not bound to reject the notes because the blanks were not filled up. The production of the notes to him, with proof of the party being indebted, was good evidence under the act of assembly for the warrant to issue. The law did not contemplate that the party was to go into every kind of proof which is required to substantiate a claim upon a trial before a jury.</p> <p>As to the second objection, the judge of a particular district is a judge of the state, appointed for Ihe particular district in which he is to act. Every officer is a state officer, though appointed to act in a subaltern station. Every justice of the peace is a justice of "the state lor the. particular county in which he resides.</p> <p>But this objection comes too late, as the person who issued the warrant for the attachment is tiie sole and exclusive judge of tiie sufficiency of the proof.</p> <p>No objection could be made in this case until the process was returned. The person who directed the attachment must exercise his judgment. But when the process is returned, an inquiry can be had whether the' evidence upon which it issued was sufficient to warrant the procedure. It may not be necessary to require tiie same proof which would he necessary on a trial, to justify the ordering the attachment; but before a condemnation can be obtained upon the attachment, tiie proof must be required. ’ Stronger proof is necessary to ’obtain a judgment of condemnation than is requisite to obtain an attachment.</p> <p>As to the other objection, that the affidavit was not made before a proper person. — -If tiie act uf 1795 had oniy said that the affidavit must be before a judge of the state of Maryland, it would be clear’ that no judge of tiie county court, or justice of the peace, could have been intended or authorised by the act. The láw baying said it must he done “before any judge of any other of tiie United States,” means that it must be time before ajudgaaif tiie highest grade ia the state, and not done before a judge of a district orcounj</p> <p>A third objection may be made — The^hj^ffor of Mas-»* a gatfmsetts oniy certifies that the person wfio^tqokydih?*-» affidavit is a justice of the court of common ?or"'t!ie county of Suffolk — he does not certify, i| e langustcg^í,’required by the act of assembly, ‘‘that hath authority'to administer such oath,” this comdT is not bound to take notice of the powera of®el|treHt upon his appointment. • ‘</p> <p>Chase, Ch. J. Three objections have been made in this case why condemnation should not be awarded on the attachment.</p> <p>The first objection. That it did not appear by (he promissory notes that Smith, the plaintiff, was entitled to receive the money.</p> <p>The'court think the evidence was sufficient to authorise the issuing the attachment. But proof must be. mudo of the hand writing of tho first endorser, and the endorsement must be filled up to entitle the plaintiff to a judgment of condemnation.</p> <p>The second objection. That the judge who took the affidavit was a judge of a county court, and not a judge of the state.</p> <p>The court think that the act does not tie it up to a judge of any particular court; and that a judge of any court is sufficient — a judge of any court of the state is a judge of the state.</p> <p>The third objection, as to the certificate of the governor. It does appear to the.court that the certificate is sufficient. • The governor certifies to the affidavit of the justice of the court of common pleas, “that full faith and credit is to be given to bis attestation.” He has attested that Smith was sworn, and this shows that he could administer an oath. ■</p> <p>ICey. Previous to the issuing the attachment in this-ease, viz. on the 30th of September 1796, the property* upon which it has been laid, had been transferred by the defendant to George Simpson and others. This being the case judgment of condemnation cannot be entered.</p> <p>contended, that the act of 1753, ch. 36, made the conveyance void, the requisites of that act not having been complied with.</p>