Dickinson v. Barnes

Court of Appeals of Maryland

Dickinson v. Barnes

3 Gill 485

DecidedJune 15, 1846

StatusPublished

This text of 3 Gill 485 (Dickinson v. Barnes) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dickinson v. Barnes, 3 Gill 485 (Md. 1846).

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Opinion

Magruder, J.,

delivered the opinion of this court.

It is no reason for quashing an attachment, issued under the act of 1795, chap. 56, that the oath to be made by the creditor, was made before one justice of the peace, (of a different county;) and that another issued his warrant to the clerk of the county court, requiring him to issue the attachment. The oath may be made before “a judge of any other of the United States,” and in the case of Smith against Greenleaf, 4 Harr. McHenry, 291, was made before a judge of one of the courts in Massachusetts.

The act of Assembly is quite explicit. The creditor is to make application to “any judge of the general court, justice of the county court, or justice of the peace;” and when made to him, “the said judge of the general court, justice of the county court, or justice of the peace,” is to issue his warrant. An affidavit is tobe produced to him, with the cause of action;— that affidavit, however, the law does not require to be made, before the judge or justice who issues the warrant, but before “any judge of the general court, justice of the county court, or justice of the peace of this State;”—it is added : “or before any judge of any other of the United States,”—who, of course, is not to issue the warrant for an attachment. The justice of the peace who issues the warrant, must be of the county in which the attachment is to be issued; the oath may be made before any “justice of the peace of this State.”

If, therefore, the court in deciding this case, were confined to the reasons to be found in the record, this judgment would [492]*492be reversed. It has been decided here, that in the case of a motion in arrest of judgment, the party appellant may, in this court, assign other grounds, than those which are to be found in the record; and for the same reason it seems proper, not to confine him, in cases of this description, to reasons filed with the motion to quash the proceedings. See, also, Boarman vs. Israel and Patterson, 1 Gill, 372.

This court thinks, that there is in the record a fatal objection to the proceeding by attachment, inasmuch as it does not appear, as the law requires, that the debtor was a citizen of the State. It is certainly not to be sustained, as an attachment against a non-resident, and it does not appear that he was a citizen of the State.

JUDGMENT AFFIRMED.

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Magruder, J.,

delivered the opinion of this court.

It is no reason for quashing an attachment, issued under the act of 1795, chap. 56, that the oath to be made by the creditor, was made before one justice of the peace, (of a different county;) and that another issued his warrant to the clerk of the county court, requiring him to issue the attachment. The oath may be made before “a judge of any other of the United States,” and in the case of Smith against Greenleaf, 4 Harr. McHenry, 291, was made before a judge of one of the courts in Massachusetts.

The act of Assembly is quite explicit. The creditor is to make application to “any judge of the general court, justice of the county court, or justice of the peace;” and when made to him, “the said judge of the general court, justice of the county court, or justice of the peace,” is to issue his warrant. An affidavit is tobe produced to him, with the cause of action;— that affidavit, however, the law does not require to be made, before the judge or justice who issues the warrant, but before “any judge of the general court, justice of the county court, or justice of the peace of this State;”—it is added : “or before any judge of any other of the United States,”—who, of course, is not to issue the warrant for an attachment. The justice of the peace who issues the warrant, must be of the county in which the attachment is to be issued; the oath may be made before any “justice of the peace of this State.”

If, therefore, the court in deciding this case, were confined to the reasons to be found in the record, this judgment would [492]*492be reversed. It has been decided here, that in the case of a motion in arrest of judgment, the party appellant may, in this court, assign other grounds, than those which are to be found in the record; and for the same reason it seems proper, not to confine him, in cases of this description, to reasons filed with the motion to quash the proceedings. See, also, Boarman vs. Israel and Patterson, 1 Gill, 372.

This court thinks, that there is in the record a fatal objection to the proceeding by attachment, inasmuch as it does not appear, as the law requires, that the debtor was a citizen of the State. It is certainly not to be sustained, as an attachment against a non-resident, and it does not appear that he was a citizen of the State.

JUDGMENT AFFIRMED.

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3 Gill 485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dickinson-v-barnes-md-1846.

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