De Bebian v. Gola

Stone. J., delivered the opinion of the Court. This is a contest between different attaching creditors of Ernest de Merolla, an absconding debtor. Cola, the appellee, attached certain property of Merolla, and the appellant De Bebían, another creditor of Merolla, moved to quash the attachment.

The motion was overruled and an appeal taken. Several reasons have been assigned why the attachment should be quashed. One of these reasons is, that in the affidavit made by Cola, the attaching creditor, the word “ dollars ” is omitted. In the certificate of the affidavit made before the justice of the peace, and returned to the Court, the word “ dollars ” is omitted, but in the warrant directed to the clerk, and which is the authority for issuing the attachment, that omission is supplied.

The clerk of the Superior Court was directed upon the re'ceipt of that warrant, and the oath and voucher, to issue an attachment for the sum of five thousand and five hundred dollars “in the said affidavit specified.” The several notes produced before the justice amount to the said sum of five thousand and five hundred dollars. It is evident-from these facts, that the omission of the word dollars in the affidavit was a mere clerical error of the justice, and that the attaching creditor did really do all that the law required him to do. That is, that he made the affidavit that Merolla was justly and bona fide indebted to him in the sum of five thousand and five hundred dollars over and above all discounts, and that he then and there produced his vouchers showing that amount of indebtedness. The omission of the word “dollars” in the certificate of the justice, is sufficiently supplied in the warrant, and it should he treated as a clerical misprision.

Jean vs. Spurrier, 35 Md., 110 . . Another objection urged, is, that there were three notes due to the attaching creditor, two of them written in English, and one in the Italian language. That the one writ ²⁶⁵ ten in Italian was the only note that had fallen due at the time the attachment was issued, and that being written in a foreign language, and unaccompanied by a translation, this voucher did not show a prima facie case of indebtedness. A bill of exchange or promissory note written in a foreign language, constitutes as good a cause of action in the Courts of this country, as a bill or note written in English.

It may- require proof, and have to be translated to the Court or jury, but the bill or note is the cause of action. A bill or note written in English requires proof of the signature before the judgment is rendered, (unless it is admitted at the trial.) But proof of the signature is not required at the time of bringing suit-. So a suit may be brought on a foreign bill of exchange without any proof offered of a translation at the time of instituting the action. It is time enough to offer such proof at the trial.

All that our attachment laws require, is, that the note upon which the absconding debtor is indebted should be produced before the justice. He is not required to produce any evidence whatever tending to show that the signature is genuine, or, in case of an endorser, that the note was duly protested, etc. Dawson vs. Brown, 12 G. & J. 53 ; all such are matters of proof at the trial. So in the case of a note written in the Italian language, the contents of the note are a matter of proof at the trial. It is enough if the attaching creditor produces the note and makes affidavit that his debtor is justly and bona fide indebted to him upon the note which he then produces, in a certain sum over and above all discounts.

If it turns out at the trial that he is not so indebted, the attaching creditor loses his case. If the note in this case, written in Italian, was in reality not what the attaching creditor claimed it to be, that is, a note for fifteen hundred dollars, it is competent for the contesting creditors to show that fact and thus defeat his claim. But the onus is upon them to ²⁶⁶ do so. Until they show to the contrary, we must presume the note to be what the plaintiff swears it is, a note for fifteen hundred dollars.

We do not think it necessary to decide the question whether an attachment against an absconding debtor for a debt, the time for payment of which has not arrivedjvhen the attachment issued, is valid or not, as a part of the debt claimed in this case, was already due and payable, and an attachment will not be quashed if any part of the claim upon which the attachment issued is sustained at the trial. Dawson vs. Brown, 12 G. & J. 53 . Another objection urged is that the short note case is in assumpsit, while the vouchers or causes of action are sealed instruments. If this objection were well founded, the defect could be remedied by amendment.

Our statute of amendments extends to, and includes the declarations filed in attachments, as well as in other cases. Norris vs. Graham, 33 Md. 56 . But we think no amendment necessary. There is nothing whatever on the face of these notes to show that Merolla intended to make them sealed instruments in the legal acceptation of that term, or that Gola received them as such.

It is apparent that Merolla borrowed these several sums from Gola at a short date, and that he, Merolla, promised to return them, and that Gola looked to him for the money. The seal impressed upon the paper, was not De Merolla’s seal, but the seal of the Yice-Consulate of Italy, at Baltimore. He may have thought it added to the respectability of the transaction to impress his official seal on the paper, and even in one case to prefix his title of “ YiceConsul of Italy ” to his name, but the papers themselves only amount to an acknowledgment that he, Merolla, had borrowed these sums of money and would return them. What “ use ” he put the money so borrowed to, is and was entirely immaterial to the lender, and does not affect the contract.

There are many “uses” that De Merolla could ²⁶⁷ have borrowed this money for, beside for the “ use of the Vice-Consulate of Italybut none of such “ uses ” could affect the contract between Gola and himself, whether expressed in the receipt or not. The theory that these notes or receipts are obligations resting upon the “ Vice-Consulate of Italy, at Baltimore,” and to be assumed and paid by De Merolla’s successors in office, or to put the matter plainly, that the Italian Government, for that is what such a theory would mean, would issue bonds or pay for all money borrowed by a Vice-Consul, does not deserve any serious consideration. We think the judgment should be affirmed. (Decided 22nd July, 1885.) Judgment affir'med.

Ritchie, J., filed the following dissenting opinion: The appellee caused an attachment on warrant to be issued for the sum of $5500 against Ernest lie Merolla as an absconding debtor. As evidences of debt three due bills or promissory notes were produced aggregating the amount named. The form of the first is that of the other two, except in date and amount, and that one of them has the words above the signature, “ Vice-Consul of Italy.” Translated it reads: “Royal Consular Agency of Italy, Baltimore 2 June, 1882. “Received from Charles Gola, Esq., for the use of this Vice-Consulate of Italy, one thousand, five hundred dollars, to be returned within ninety days, with the usual interest and commissions. E. De Merolla.

(Seal marked, “Royal Consular Agency of Italy, Baltimore.”) ²⁶⁸ In the affidavit the appellee makes oath that said Merolla u is justly and bona fide indebted to him in the full and just sum of five thousand and five hundred-with interest from —=— over and above all discounts,” &c., the blanks being left thus unfilled, and no amount of indebtedness whatever in dollars being specified. In the warrant of the justice, however, he directs the clerk “ on receipt of this warrant, and the above oath, and annexed voucher on which the same is granted,” to issue an attachment, &c., “ to answer unto the said Charles G-ola the above mentioned sum of five thousand ""and five hundred dollars, current money, in the said affidavit specified,” &c. As no sum is in fact specified in the affidavit, the question is, on the motion to quash for that omission, whether from the vouchers and the language of the magistrate in the warrant, the word dollars can be taken as sworn to and inserted. The inquiry is not, — assuming the appellee did swear to five thousand and five hundred dollars, and the justice, from mere inadvertence, omitted to mention the word dollars, — whether he could have subsequently amended the affidavit; but whether looking to the record as it now stands, we can conclusively determine from it, first, that the appellee did not himself make the omission, and, secondly, that the affidavit is not required in itself to furnish the evidence of what was sworn to.

The magistrate’s warrant simply undertakes to recite what was sworn to, and is but the declaration or unsworn version of the magistrate to that effect. It is clear the affidavit of the party is required to set forth the jurisdictional facts, and only the person making it is competent to furnish them,' and they must be averred, and be received prima facie as true, only under the solemnity of an oath. One of these jurisdictional facts is the amount of indebtedness “ over and above all discounts.” On the face of the present oath, and as it itself appears in the record, no such ²⁶⁹ amount is given. At the present stage of the case, even if at some other, we do not think this material averment can be supplied upon the mere declaration of the magistrate to the clerk in his warrant, which even if it can be looked to is contradicted by an inspection of the affidavit itself.

Nor can the vouchers supply such an omission, because while the evidences of debt must accompany the affidavit, that is an independent requirement, and the affidavit is an act separate and distinct from the production of the vouchers, and must, besides the sum specified,, contain the averment “ over and above all discounts,” so that the bona fide amount still due may appear, in view of possible payments or proper set-offs, which would reduce the indebtedness apparent on the face of the vouchers. There are three distinct conditions precedent to issuing an attachment; the affidavit, the production of the vouchers, and the warrant of the magistrate ; each of these for itself must meet the statutory requirements. Remedy by attachment “ being a jurisdiction derived from statutory law, no principle is better established than that the attachment proceedings mustujpon their face show affirmatively, that the requirements of the statute have been substantially complied with, otherwise the Court issuing the attachment would be acting without jurisdiction, and the judgment thereupon rendered would be void.” Matthews & Zollikoffer vs. Dare & McClure, 20 Md., 265 ; Coward, Garn. vs. Dillinger & Stevenson, 56 Md., 61 . And in Farrow, et al., Garn. vs. Hayes & Co., 51 Md., 498 , this Court says: “ Without doubt the decisions in Maryland have gone as far as those of any State in the Union, in requiring attachment