Brown v. Clayton

• Citation: 12 Ga. 564
• Decision Date: 31 January 1853
• Docket Number: No. 90.,90.
• Parties: Brown, Shipley & Co. vs. P. A. Clayton, defendant in error.
• Court: Georgia Supreme Court

12 Ga. 564

Brown, Shipley & Co. vs. P. A. Clayton, defendant in error.

No. 90.

Supreme Court of the State of Georgia

JANUARY TERM, 1853.

[COPYRIGHT MATERIAL OMITEED.]

Attachment, in Muscogee Superior Court. Tried before Judge Iverson. November Term, 1852.

This was an action founded on an attachment from Muscogee Superior Court, upon the following state of facts: In the year 1836, the plaintiff in the Court below, shipped through Harper & Holms, at Apalachicola, Florida, five hundred bales of cotton. In the Fall of that year, they, the consignees, sold the 500 bales of cotton, and sent to Clayton an account of sales, by which they acknowledge that they have in their hands a balance to Clayton's credit. Clayton having, by the testimony in the record, drawn out all the balance remaining in the hands of Brown, Shipley & Co. save about j£21, 5s. 11d. Claytou being dissatisfied with the amount rendered, sued out an attachment against the said Brown, Shipley & Co. and upon the trial of said cause, the Jury found a verdict for the plaintiff.

Before the case was submitted to the Jury, defendant's counsel moved the Court to dismiss the attachment, upon the ground that the affidavit was insufficient to authorize the issuing of the attachment, because that portion of the affidavit excepted to, was in the following words: "That Brown, Shipley & Co." (having previously stated the names of the different mem-bers of the firm,) " are indebted to him, deponent, in the sum of twelve hundred and thirty-two dollars, fifteen cents, besides interest and exchange between Columbus, Geo., and New York City, and between New York and Liverpool, in England, on account of the balance of that amount of proceeds of 500 bales of cotton, recieved and sold by said firm, for said deponent, as his agent, and which had not been accounted for; and that said defendant resided out of said State, &c.;" and because the bond given was not attested by the Magistrate who issued the attachment; which said motion to dismiss, the Court overruled. After verdict, the defendant moved for a new frial, upon the grounds—

1. That the Court erred in overruling the demurrer of the defendants, to the sufficiency of the affidavit and bond on which said attachment was issued.

2. Because the Court erred in rejecting so much of the evidence of Isaac R. Nash, as was derived from books.

3. Because the Court erred in charging the Jury, that if the cotton shipped by plaintiff was ship-damaged; in other words, if the damage upon which occurred the defendant's claim for canvass, twine and mending, " happened between the ports of Apalachicola and the ports of Liverpool, after the cotton was received on ship-board, and after the bill of lading, read to them, had, in fact, been given for it, then the ship or carrier of the cotton was liable therefor, and not the plaintiff; and that the shipments of the plaintiff, in the hands of the defendants, was not, in any manner, to be charged therewith."

4. Because the Court erred in charging the Jury that the defendants must account to the plaintiff for the number of pounds of cotton upon which they paid freight.

5. Because the Court erred in charging the Jury that the plaintiff, if entitled to recover anything, was entitled to recover interest thereon.

6. Because the verdict included interest upon unliquidated damages, and is contrary to law and evidence.

Which motion was overruled by the Court, on all the grounds therein stated; and to which overruling by said Court, the coun-sel for the defendants excepted, and their several rulings and decisions are, in this cause, assigned for error.

H. Holt, for plaintiffs in error.

Jones, Benning & Jones, for defendant in error.

By the Court.—Nisbet, J. delivering the opinion.

The demurrer to the affidavit and bond, we are satisfied, was properly overruled. The Statute does not specify upon what character of indebtedness attachment shall issue. It authorizes it to be sued out, upon complaint on oath, that the complainant's debtor resides out of the State, &c. &c. He who is the debtor of another is liable to it, if in any one of the positions mentioned in the Act. It is not necessary that the debt, be evidenced by bond, or note, or balance of account acknowledged. It must be an indebtedness upon the face of the statements made in the affidavit. If the plaintiff swears to a debt it is sufficient. The technical idea of a debt may be, as claimed, a liquidated sum; but this Act does not contemplate that kind of indebtedness alone. An amount of indebtedness must be stated. Here that is done. The plaintiff swears that the defendants are indebted to him in $1,232 and 15 cents, besides interest and exchange, on account of a balance of proceeds of sale of cotton effected by them, as his agent. It is then a debt due upon account, and attachment will lie for that kind of debt.

The objection to the bond is, that it was not taken by the Magistrate who issued the attachment. It is attested by a Magistrate officially; it appears with the other papers in the record; and the Magistrate who issued the attachment, recites in the attachment itself that the bond and security were given in pursuance of the law in such cases made and provided.

Now, the Attachment Law authorizes any Judge of the Superior Court, or Justice of the Inferior Court, or Justice of the Peace, to issue the attachment, provided, that the Judge, Jus-tice or Magistrate, before issuing it, shall take bond and security, &c.

To hold, that this proviso meant to say that the attachment should not issue, unless the bond is attested by the same Magistrate that issues the process, would be an unnecessarily literal construction. The position of counsel must go this extent, or it falls short of any force. The duty of the Magistrate clearly, is not to issue the attachment, unless the bond is given. He must see to it that a bond is given, and if it is not given, the process is a nullity. But he takes a bond, when a bond duly executed is presented to him, before he issues the process. When such a bond is given, the Statute is substantially complied with. That it was complied with in this case, is proven by the bond itself, signed, sealed and attested; and that it was given before the attachment issued, is proven by the official statement of the Justice of the Inferior Court, who attested the process.

The object in requiring a bond at all is, for the protection of the defendant against costs, and to secure him in his damages, in the contingencies mentioned in the Statute. To this end, a bond is a condition precedent to the use of the remedy by attachment; and that it may be a sufficient bond, the Magistrate issuing the attachment is required to take it. He can as well judge of th? sufficiency of the bond, when it is attested by another, as when he himself attests it. He is presumed so to have considered it; and to have held, in his judgment, that the bond was sufficient to authorize him to issue the process. I cannot hold that any attestation of the bond is indispensable. Why not a good bond, without the attestation of a Magistrate? The Statute does not require any attestation. The true test of the regularity of this procedure, is this—are the defendants protected by the bond? If the bond can be enforced, they are; and it does not seem to me, to admit of a question, that a defence to a suit on this bond, founded on the fact that it was not executed before the Magistrate that issued the attachment, would be unavailing.

The exception founded on the exclusion of a part of the testimony of the witness, Nash, was abandoned in the argument, and the other exceptions grow out of the charge of the Court. The presiding Judge instructed the Jury, that if the cotton shipped by the plaintiff, was ship-damaged; in other words, if the damage, upon which accrued the defendant\'s claim for canvass, twine and mending, happened between the port of Apalachicola, and the port of Liverpool, after the cotton was removed on shipboard, and after the bill of lading had been given for it; if they believed from the evidence that the bill of lading, read to them, had in fact been given for it; then the ship or carrier of the cotton were liable therefor, and not the plaintiff; and that the shipments of the plaintiff, in the hands of the defendants, were not, in any manner, to be charged therewith." This charge, when analyzed, contains two propositions, which it is important to separate. The first is, that if the cotton shipped by the plaintiff, Clayton, received the damage upon which the defendant\'s claim for canvass, twine and mending, is based, after it had been shipped, and after the bill of lading was signed, then the ship or carrier is liable for the damage. The second is, that if the damage was received after the shipment, and after the signing of the bill of lading, then, neither Clayton nor the shipment in the hands of the defendants are in any manner liable to be charged therewith. To do justice to the case, a statement of the...