Lambden v. Bowie

Ecclestoií, J., delivered the opinion of the court. In this attachment under the act of 1795, ch. 56, an ex-porte affidavit was filed, for the purpose of proving that the defendant was a resident of Maryland, at the time the writ ³³⁸ issued, and thereupon, a motion was made, by counsel for the defendant, to quash the proceedings. Without further proof, the attachment was quashed, and from this decision of the court, the present appeal was taken. In Campbell vs. Morris, 3 H. & McH., 553 , it was held, that on a motion to quash, “evidence dehors or extrinsic the proceeding, may be resorted to in order to prove the want of title to the property attached.” From the opinion of the general court in that case, it will be seen that until the defendant appeared, which could not then be without giving bail, no evidence was admissible which related to the merits of the dispute between the parties ; but until an appearance with bail, every fact was cognizable by the court which would show the attachment issued irregularly, or that the property did not belong to the defendant.

These principles in regard to an attachment, and the mode of proceeding under it, are fully recognized and approved, in Ranahan vs. O’Neale, Jr., 6 G. & J., 301 . And in Stone vs. Magruder and Brooke, 10 G. & J., 386 , the court refer to Campbell vs. Morris, as authority to the rule, that where a defect is apparent in the proceeding, the attachment may be quashed upon suggestion of such defect to the court, by the defendant, or a third person, claiming an interest in the property. In stating this rule the court use the very language of Judge Chase, (although not marked as a quotation,) and then say: “The practice has constantly conformed to this doctrine.” Nothing is said in reference to that portion of Judge Chase’s opinion which relates to matters dehors or extrinsic the proceeding. There was no necessity for doing so, as the question then under consideration arose upon an apparent defect.

The counsel for the appellant has referred to Barr, Garnishee, vs. Perry, 3 Gill, 323 and 324, as overruling Campbell vs. Morris, so far as relates to a motion to quash, based upon matters not apparent in the proceeding. • And he contends that under this recent decision, defects which are not apparent can be taken advantage of, only, by plea. We do not so understand that case. There a plea was resorted to, and the ³³⁹ plaintiff demurred. The question thus presented, was not whether a motion to quash would have been proper, but whether it was, so essentially, the only appropriate proceeding, that a plea could not be allowed.

The court overruled the demurrer, and held the plea to be good. In the argument in favor of admitting the plea, reference is made to decisions, in Vermont, Connecticut and South Carolina. And the learned judge who delivered the opinion of the court, comes to the conclusion, “that courts of more modern times have not been so partial to the old practice of trying facts, without the intervention of a jury, even in these summary proceedings.” After noticing the South Caroliua cases, with some particularity, he says: “In Maryland it ought not to be doubted, that these facts, if disputed, may be submitted to a jury, and, therefore, may be pleaded.” If, however, they may be pleaded, it does not follow that they cannot