President & Directors of Franklin Bank of Baltimore v. E. G. Matthews & Co.

69 Md. 107 | Md. | 1888

Alvey, C. J.,

delivered the opinion of the Court.

The question in this case is a very narrow one, and is one of practice simply. Whether it was competent to the Superior Court, without invalidating the attachment proceeding, to allow the original causes of action, consisting of two notes and an open account, exhibited to the magistrate, and filed with the warrant to the clerk to issue the writ of attachment, to be withdrawn from the files of the Court, upon leaving copies thereof made by the clerk, is the only question that need be decided on this appeal. And, in view of the long existing practice in the Courts of this State, and the necessity and convenience of the thing, to meet certain requirements that often occur, we are of opinion that the withdrawal of the notes and account, upon leaving copies, did not affect or in any way impair the validity of the attachment proceeding, it is certainly true, that, by the terms of the statute, the plaintiff in attachment on warrant is required to produce to the justice or other officer before whom the affidavit is made, “the bond, account, or other evidences of debt,” by which the defendant is indebted to the plaintiff and upon which the warrant shall issue to the clerk; “and upon the receipt of said warrant, with the proofs on which the same was granted, and not otherwise, the clerk shall issue the attachment.” But notwithstanding this requirement, as the foundation for issuing the attachment, it does not follow that the original vouchers or causes of action shall always remain in the papers, and shall for no purpose be allowed to be withdrawn. Suppose, for example, a party to have a note for $5000, and he has an opportunity of making $1000 of it by attachment in one jurisdiction, and he sues out his attachment for that purpose, and he afterwards discovers that he can make the residue of the note by resort to an attachment in another jurisdiction, is there any principle or rule of practice that requires the note to be impounded in the first case, so as to prevent the resort to the second attachment? We think not. All rules of practice should be founded in reason and convenience, and should be made to subserve the ends of justice. And in attachment cases, as in other cases, the original vouchers or causes of action may be Avithdrawn from the files, by special order of the Court; but in all cases it should be alloAved with caution, and only upon sufficient reason shoAvn, and in no case except upon certified copies being left in the place of the originals, as was done in this case.

It is urged that the practice of alloAvingthe original vouchers to be AA'ithdraAvn may, and Avill likely, operate to the prejudice of parties Avhose interest and right it may be to oppose and defeat the attachment. But AAre do not apprehend danger of any such consequences.' Whenever the original Amuclxers may be required, they must be produced; so that no person interested in the attachment proceeding shall be in any manner prejudiced in his rights by the withdraAval of such original vouchers. If the genuineness or validity of the vouchers be called in question by any person interested and authorised to raise such issue, the originals may be required to be reproduced and proved as if they had never been Avithdrawn from the files. Tliis would seem to furnish, all the necessary safeguard that the rights of parties interested could in reason require. And such being the opinion of this Court, it follows, that the judgment of the Court below, quashing the attachment upon the ground of the withdrawal of the original vouchers, must be reversed, and the cause be remanded to be proceeded with as if the attachment had never been quashed.

(Decided 12th June, 1888.)

Judgment reversed, and cause remanded.