Stewart v. Katz

Miller, 3\, delivered the opinion of the Court. On the 30th of October, 1866, the appellants sued out of the Superior Court of Baltimore city, an attachment under the Act of 1864, ch. 306, against the property and credits of David Long. The sheriff seized and took under the writ certain goods as the property of Long, and the appellee appeared and moved to quash the attachment — 1st, for defects apparent on the face of the proceedings, and 2d, because he was the owner of the property, and Long then had and now has no interest therein, or right or title thereto. The motion to quash ivas set down for hearing with leave to all parties to take testimony upon the usual notice.

Proof was taken relating exclusively to the validity of the bill of sale of the 23d of October, 1866, under which the appellee claimed title to the property. Upon the hearing of the motion the Court quashed the writ upon the sole ground of the insufficiency of the affidavit required by the law to be made before the attachment shall be issued. From the order thus quashing the attachment, the present appeal was taken. The ³⁴³ alleged defects upon the face of the proceedings relate mainly to the sufficiency of the affidavit and the validity of the bond.

These we shall'consider in their order: 1st. The law requires that the plaintiff or some person in his behalf, shall make an affidavit stating the indebtedness of the defendant to the plaintiff, and that the plaintiff knows or has good reason to believe the defendant is about to abscond, or has done certain specified acts or some one of them. The present affidavit states that the affiant, Rice, appeared “on behalf of Alexander T. Stewart, Francis Warden and George Fox, partners, trading under the name of A. T. Stewart & Co., and made affidavit that David Long is bona fide indebted to the said A. T. Stewart & Co., in the sum of $4,051.09, over and above all discounts, and that the said A. T. Stewart & Co. have good reason to believe,” &c. The alleged defect is said to consist in this, that the witness has not sworn that the individuals constituting the firm of “A. T. Stewart & Co.” or the plaintiff's, but “A. T. Stewart & Co.” in their aggregate capacity and under their trade or partnership name, have good reason to believe, <fec.

And it is argued in support of the objection, that a trade name cannot have beliefi which refers to an operation of the mind, and that no indictment for perjury could be framed on such an affidavit. This objection reaches the extreme point of attenuation, and is, in our judgment, not warranted by any of the decisions which have enforced the strictest conformity of attachment proceedings with the requirements of the law. The names of the individuals on whose behalf the affiant appears are stated, and it is then stated that these individuals compose a certain firm, known by a certain name, and the witness then swears to the indebtedness of the defendant to the said firm, and that said firm has good reason to believe, ka. From this it is impossible to doubt who were meant by the terms “ the said A. T. Stewart & Co.,” or that the conscience of the affiant was pledged to the averment that the individuals previously named as constituting the firm, have good reason to believe the facts sub ³⁴⁴ sequently stated.

It was not necessary that these names should be repeated each time there was occasion to refer to them, but reference to them by the other and briefer name or alias, by which they were known, was sufficient. A partnership is not a being distinct from the individuals who compose it, and when it is spoken of by its firm name, and as the said partnership and the members which constitute it have been previously in the same instrument specially mentioned, no other meaning can be given to the reference than to the individuals thus named. We cannot sustain such an objection. The law may be a harsh one, and capable of being converted into án instrument of oppression and liable to great abuse; but the Courts must give it effect so long as it remains the law of the State.

No other objections to the affidavit have been made or suggested, which require notice by this Court. 2d. The law also says that before the attachment shall issue, a bond shall be taken from the plaintiff, or some person on his behalf with security, to be approved by the clerk, with the prescribed condition, and if any attachment shall be issued without a bond taken as aforesaid, it shall be illegal and void. Under this, the sufficiency of the sureties is a matter left entirely to the judgment of the clerk, but the legal validity of the bond itself, is a subject for review on this appeal. The objection is, that it is not the bond of Stewart, Warden and Fox, because their names are not signed to it by Rice, by authority under seal to that effect or otherwise, and that it is not the bond of Rice, because he signs it as agent, and did not intend thereby to bind himself.

If both views are ■ sound, the objection is certainly well taken, for the securities could not be held responsible on such an instrument. We agree for the reason stated, that Stewart, Warden and Fox are not bound as obligors, but from a careful examination of the instrument, we are satisfied it is the bond of Rice, binding upon him individually. The law upon this subject is correctly stated in Abbey vs. Chase, 6 Cush., 54 , and Clark’s Lessee vs. Courtney, 5 Pet., 350 , and the authorities there cited. ³⁴⁵ Iii