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

Cochean, J., delivered the opinion of this Court. This is an appeal from an order, overruling a motion to quash an attachment, made by the appellant, on the ⁴⁹⁹ ground that no sufficient cause of action was produced before the magistrate who issued the warrant. We find by examining the proceedings, that the claim is for the sum of §41,000, which the appellee’s account stat.es to be due and owing on a contract thereto annexed, executed by the appellant to Allen M. Sherman, and William B. Dean, in April 1856. The objection on which the appellant founded the motion to quash, raises the question whether it was necessary to show in the statement of the cause of action, an assignment of the contract, to entitle the appellee to the issue of the warrant.

The provision of the Code, Art. 10, sec. 4, requires the creditor, or some other person on his behalf, to make oath before the warrant is issued, .that the debtor is bona fid,e indebted to the creditor in the sum claimed, over and above all discounts, and at the same time to produce the bond, account or other evidences of the debt by which the debtor is so indebted. The plain import of this language is that the creditor shall produce not ojily the particular obligation by which the debtor is bound, but also such evidence as is necessary to show at least, a prima facie right on the part of the creditor to enforce its performance. As we understand it, 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 he enforced. The question raised bere was discussed in the case of Dawson vs. Brown, 12 G. & J., 53 , where it was held, that tbe clause