Clarke v. Meixsell

Nelson, J., delivered the opinion of the court. ''.Phis case presents three questions for the consideration of the court: First, is the affidavit and the filing of a bond in attachment under the Act of 1864, ch. 306, conclusive and unexaminable, and is the defendant in such attachment precluded from inquiring into the truth of the affidavit upon which such attachment issues? Under the Act of 1795, ch. 56, there is no doubt that the affidavit of the creditor may be inquired into, and if untruthful, or in any other respect defective, the attachment may be quashed on motion, or gotten rid of on plea. Campbell v. Morris, 3 H. & McH. 553 ; Barr v. Perry, 3 Gill, 313 ; Lambden v. Bowie, 2 Md. 334 . But is said the law is different under the Act of 1864, and the reason assigned is, that the fact of a debtor's absconding is an extrinsic fact which must ²²⁸ be proven to confer jurisdiction on the court, and if it be shown in contradiction to the affidavit of the creditor, that the debtor did not abscond, the court would have no rightful jurisdiction over him or his property.

If this be so, and there is no doubt that it is so, is not the charge that a debtor fraudulently incurred an obligation, or contracted a debt, or that he had done such acts, or so demeaned himself as to furnish his creditor good reason to believe that he was about to assign or conceal his property, equally extrinsic facts, necessary to be proved to confer jurisdiction? We confess we cannot see the distinction between *the two Acts. We find nothing in the language of the Act of 1864, to warrant it. We think therefore that the truth of the statements of the affidavit of a creditor suing out an attachment under the Act of 1864, ch. 306, may he inquired into upon a motion to quash.

The second question is, had the appellants the right to intervene in the attachment cause of Meixsell & Grafton? The complainants were creditors of Derr, and had recovered a judgment against him in the -Superior Court of Baltimore City, upon which an attachment by way of execution was issued and laid in the hands of Derr’s insolvent trustee, upon the funds arising from a sale of the property which had been attached in the attachment'cause of Meixsell & Grafton; they thereby acquired an interest in those funds and in their distribution. In Campbell v. Morris, 3 H. & McH. 552 , which was a case of attachment, decided in the General Court of this State, in 1797, Judge Chase, delivering the opinion of the court, lays down the following principles: “ For any apparent defect in the proceedings before the court, the attachment may be quashed upon suggestion of such defect to the court, either by the defendant himself, or a third person claiming an interest in the property attached. Before the appearance of the defendant, which cannot be but upon giving bail, which will be a dissolution of the attachment, no evidence is admissible which relates to the merits of the dispute between the parties ; but the attachment being a summary proceeding, and not changing in its nature until there is an appearance with bail, every fact is cognizable by the court which will show the attachment issued irregularly.” We have shown that Clarke, Dodge & Co., the appellants, had an interest in the funds of Derr, in the hands of his trustee, and ²²⁹ in the distribution thereof; because supposing their attachment by way of execution should be postponed to the attachment of Meixsell & Grafton, yet they would have the second lien and would be entitled to any surplus after the payment of Meixsell & Grafton.

What do they propose to intervene in the attachment *suit of Meixsell & Grafton for ? Not to offer evidence relating to the merits of the dispute between Meixsell & Grafton and Derr, but to show that the attachment was issued improvidently and irregularly, by reason of a fatal defect in the affidavit upon which it was based,' and that by reason of such defect in the affidavit, the court issued the attachment without jurisdiction. We think from the authority to which we have referred, and which has been repeatedly recognized by the Court of Appeals since, as sound law; (see Ranahan v. O’Neale, 6 G. & J. 298), the appellants had a right to intervene in the attachment case of Meixsell & Grafton. Our next duty is to inquire whether or not from the evidence in the cause, John P. Derr, the defendant in the attachment case of Meixsell & Grafton, fraudulently contracted the debt and incurred the obligation respecting which the attachment suit was brought?

And whether or not Meixsell & Grafton had good reason to believe that the said Derr was about to assign, dispose of or conceal his property, or some portion thereof, with