De Bebian v. Gola

21 A. 275, 64 Md. 262, 1885 Md. LEXIS 33

• Court: Court of Appeals of Maryland
• Decided: July 22, 1885
• Status: Published

Opinions

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 written 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 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 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.