de Riesthal v. Walton

Irving, J., delivered the opinion of the Court. The appellants instituted attachment proceedings in the Court of Common Pleas of Baltimore City against the Cleveland Non-Explosive Lamp Company to recover ($5850) five thousand eight hundred and fifty dollars, and laid their attachment in the hands of sundry garnishees in the City of Baltimore who were indebted to “The Cleveland Non-Explosive Lamp Company.” Both the plaintiffs and the debtor were non-residents of the State. The appellee, claiming to he assignee of the “Cleveland Non-Explosive Lamp Company,” appeared and claimed to he entitled to the funds attached; and moved to quash the attachment for a supposed defect in the affidavit. This motion was overruled; and though the same is not before us, (as there is no cross appeal by the claimant) we deem it proper to say we think the motion was properly overruled; and that it does sufficiently appear in the certificate of the officer that the account on and by which the indebtedness accrued, was produced at the time the affidavit was made, which was the only objection relied on in support of the motion.

The motion to quash being overruled, issue was joined on the claim of the app'ellee; and the same was tried before the Court without the intervention of a jury. ⁴⁷² Two exceptions were'taken, which involve substantially the same question, namely the admissibility of the appellee’s evidence of title. He offered a paper purporting to. be a copy of an assignment for the benefit of creditors to him, by the Cleveland Non-Explosive Lamp Company, and of the endorsement thereon of the appellee’s acceptance of the trust. This paper was without seal, without attesting witness, and did not purport to have been executed before any officer of the law. It is certified by a person purporting to be clerk of the Probate Court of Cuyahoga County of the State of Ohio, and under the seal of the Court as a copy of “a deed of assignment” filed in that Court.

Being offered as a copy of a deed, in the absence of some evidence that by the law of Ohio such a paper was operative and effective as a deed, and that such deed was required to he recorded or filed in that Court, and that a copy was made evidence ofits execution, and did away with the necessity for any further proof of execution and delivery, it was clearly not admissible. The record does not show that such evidence was produced in the Court below; and it has not been supplemented by agreement of counsel that such evidence was admitted in the Court below. The paper offered in the second exception contains, a copy of the same assignment, but differently certified. It is certified as a copy from the record of proceedings in the Probate Court of Cuyahoga County in the State of Ohio, in which Court that instrument is certified to have been filed, and upon which that Court had ordered the trustee to give bond in the penal sum of sixty thousand dollars for the performance of his trust, which is also certified to have been done.

All this is certified under the seal of the Court by the person professing to be clerk of the Court; and the person professing to be Judge of the Court certifies, that the person, who certifies as clerk of the Court, is