White v. Solomonsky

Stewart, J., delivered the opinion of the Court. By agreement of the parties, the motions to quash the attachment in this case, wére tried by the Court below, upon the plea'dings and proof. In each of the motions, errors in the proceedings, besides the defence expressly alledged, are relied upon by the appel-lees ; but the defects are not pointed out, nor does it appear upon what specific grounds the Court quashed the attachment. Notwithstanding the Act of 1825, ch. 117, which is, substantially, re-enacted by the Code, Art. 5, sec. 12, it has been repeatedly ruled by this Court, that in a question of jurisdiction, whether a special and limited authority has been pursued or not, the objection may be made here when the case is brought up on appeal or writ of error, although the point was not in fact made below.

Brice & Fisher vs. Cook, 6 G. & J., 348 ; Boarman vs. Israel & Patterson, Ex’rs, 1 Gill, 381. ' Unquestionably the proceedings must be substantially in conformity with the law regulating attachments, where they are resorted to for the purpose of securing rights by virtue thereof. Under the authority of these decisions, we have considered the points presented in the brief, and all the proceedings disr closed by the record, in reference to defects ex faoie as well as matters dehors. In the proceedings before the Justice of the Peace, where the attaching creditor was required to exhibit his preliminary proof, and furnish a foundation for the writ, we discover no valid ground of exception. The production of the account, which upon its face purports to be an account between the attaching creditors and Solomonsky & Co., and the affidavit of the party thereto, was a sufficient compliance with the law (Code, Art. 10, seo. 4,) ⁵⁸⁹ requiring the creditor to produce the accoimt, bond, or other evidence of debt, to justify the Justice of the Peace in issuing the warrant for the attachment.

He was not required to produce before the Justice, all the evidence which might be used before the Court, to establish the debt, and entitle him to judgment of condemnation. “It requires not the production óf the testimony qua testimony by which the claim is to be established, but the cause of action — the account, bill, bond, note or instrument of writing.” He may not be able to recover the whole amount of his claim for which the attachment issued, but that would not vitiate the entire proceedings. It would be good, pro tanto, or so far as it could be established. Dawson vs. Brown, 12 G. & J., 60 ; Boarman vs. Israel & Patterson, Ex’rs, 1 Gill, 379 . The proof supplied by the affidavits on file is conflicting, and we shall not refer to it here in detail.

The preponderance thereof shows that, as to the account of the appellants, as against Solomonsky, Simon & Co., there was such an agreement between them and the firm of Solomonsky & Co., growing out of the transfer of the stock in trade of the former to the latter, and with the appellants, that by the mutual consent and concurrence of all the parties, the account of the appellants against the first named firm was relinquished, and the latter firm substituted and accepted, and made accountable for its payment. This agreement and understanding of the parties, created and established the liability of Solomonsky & Co. for the payment of the claim, and discharged Solomonsky, Simon & Co. thereupon, and according to the discrimination of the civil law, was a novation or delegation between the parties, operating to substitute the new debt of Solomonsky & Co. in place of the antecedent debt against the other firm, and is not within the provision of the Statute of Frauds, which applies to the payment of the debt of another. Pothier on Obli., 548, 564, (Marg.;) 1 Parson on Contracts, 187,