| Md. | Jun 3, 1864
delivered the opinion of this Court.
This is an appeal from an order, overruling a motion to quash an attachment, made by the appellant, on the
We find by examining the proceedings, that the claim is for the sum of §41,000, which the appellee’s account stat.es to be due and owing on a contract thereto annexed, executed by the appellant to Allen M. Sherman, and William B. Dean, in April 1856. The objection on which the appellant founded the motion to quash, raises the question whether it was necessary to show in the statement of the cause of action, an assignment of the contract, to entitle the appellee to the issue of the warrant. The provision of the Code, Art. 10, sec. 4, requires the creditor, or some other person on his behalf, to make oath before the warrant is issued, .that the debtor is bona fid,e indebted to the creditor in the sum claimed, over and above all discounts, and at the same time to produce the bond, account or other evidences of the debt by which the debtor is so indebted. The plain import of this language is that the creditor shall produce not ojily the particular obligation by which the debtor is bound, but also such evidence as is necessary to show at least, a prima facie right on the part of the creditor to enforce its performance. As we understand it, the creditor is bound to show his own right of action as well as the liability of the debtor, in all cases where the creditor’s right does not appear on the face of the obligation sought to he enforced. The question raised bere was discussed in the case of Dawson vs. Brown, 12 G. & J., 53, where it was held, that tbe clause of tbe Act of 1195, ch. 56, re-enacted in the provision of tbe Code referred to, did not require “the production of tbe testimony, qua testimony by which the creditor’s claim is to he established, but the production of bis cause of action, tbe account, bill, bond, note or instrument of writing, on which a declaration would be framed as his cause of action, being in the language of tbe Act of Assembly that
Judgment reversed and Attachment quashed.