Wright v. Smith
| Citation | 19 Tex. 297 |
| Parties | WILLIAM WRIGHT v. WILLIAM A. D. SMITH. |
| Decision Date | 01 January 1857 |
| Court | Texas Supreme Court |
Where the ground for attachment is that the defendant is about to remove out of the state, it is not necessary to add that the plaintiff will thereby probably lose his debt; such additional statement is only necessary where the ground is that the defendant is about to remove his property beyond the limits of the state.
None but an intrinsic defect, or one which appears on the face of the bond, can be reached by a motion to quash an attachment; objections to extrinsic defects, or objections which must be sustained or rebutted aliunde, must be taken by plea.
It is not necessary, in the present aspect of the case on hand, to intimate whether, in our opinion, this principle from the law of agency, as to the effect of subsequent ratification, will apply to bonds taken as preliminary to an attachment.
Quære, whether an agent or attorney cannot give bond, in his own name, with securities in behalf of his principal, to obtain an attachment?
On a motion to quash an attachment, on the ground of defect in the bond, everything that appears on the face of the bond is admitted to be true; this includes an admission of the authority of the agent or attorney, where the bond purports to be executed by agent or attorney, and the agent or attorney will not be ruled, on motion, to produce his authority, which can only be questioned by plea.
Error from Lamar. Tried below before the Hon. William S. Todd.
The facts are stated in the opinion.
Mills & Mills, for plaintiff in error, in a brief prepared before seeing the newspaper report of Messner v. Hutchins, in answer to the objection to the affidavit, cited Sydnor v. Chambers, Dallam, Dig. 601; and in answer to the objection as to the want of a showing of the agent's authority, argued that a subsequent ratification was sufficient; citing Story on Agency, secs. 239, 248, 265; Smith on Mercantile Law, 60; Paley on Agency, 171, 172, 211; 3 Mass. 68;6 Id. 230;10 Wend. 218; 6 Mann. & Grang. 236. The case of Messner v. Hutchins was cited in a note.
Dillahunty & Wright, for defendant in error, cited Drake on Attachments, sec. 135; and argued that the most that could be claimed by the plaintiff was time to produce the authority; whereas here the plaintiff files a ratification, which makes no pretense that the agent had authority at the time of executing the bond.
This was a suit by Wright, the plaintiff in error, against Smith, the defendant in error, on a judgment from Virginia. An attachment was issued and levied on some slaves as the property of Smith. On motion, the writ of attachment was quashed, and the cause having been submitted to a jury, there was verdict for the plaintiff. The cause has been brought to this court by the plaintiff on an assignment of error in quashing the attachment.
The grounds of the motion to quash were:
1st. That the affidavit was not in conformity with the statute, in this, that the affiant does not swear that thereby the plaintiff will probably lose his debt.
2d. That there was no bond given by the plaintiff, as required by the statute.
The first ground is not well taken. The plaintiff had sworn that the defendant was about to remove out of the state, not that he was about to remove his property. The plaintiff is not, by the statute, required to swear that he will probably lose his debt, except where he swears that the defendant is about to remove his property beyond the limits of the state. Hart. Dig, art. 25; Messner v. Hutchins, 17 Tex. 597.
The next ground, viz.: that there was no bond given by the plaintiff, as required by the statute, is of more importance.
The ground does not specify the objection to the bond. The language used would apply as well in case there was no bond as where there was a bond, but not in conformity with the statute. From the argument in this court, it appears that the supposed defect in the bond is, that the attorney who signed the name of the principal to the bond had no authority, or no letter of attorney, authorizing him, as agent or attorney in fact, to execute the bond. It appears by a paper filed in the record that the act of the attorney was subsequently ratified by the plaintiff, but it does not appear from the record whether this ratification was brought to the notice of the court, or what facts, if any, extraneous to the bond itself, were brought before the court on the motion to quash, or on what grounds the motion was sustained.
The main point, as presented by the record, is, whether the question of the authority of an attorney to sign a bond on behalf of his principal can be considered and tried on a motion to quash?
There can be no doubt that where there is no bond, or where the defect of the bond appears on its face, the attachment may, on motion of defendant, be quashed. The statute declares “that every original attachment issued without bond and affidavit, taken as aforesaid, shall be abated on motion of defendant.” Hart. Dig. art. 30. But it is argued, and we think soundly, that none but an intrinsic defect, or one which appears on the face of the bond, can be reached by a motion to quash, and that an objection to an extrinsic defect, or one which must be sustained or rebutted by evidence aliunde, must be taken by plea. If so, there was manifest error in quashing the attachment on motion, as the fact of authority or not in the attorney to execute the bond for the principal was clearly aliunde, and depended on proof extrinsic of the bond. This point was also fully decided in Messner v. Hutchins, above cited. From the condensed report of that decision, it appears to have been held that where the bond purports to be the act of the plaintiff, by an attorney in fact, the authority of the attorney will be presumed, at least on a motion to quash on the ground of insufficiency of the bond. The ground should be taken by plea, as the authority is a matter aliunde. The authorities cited in that decision were Drake on Attachments, sec. 135, and 9 Porter, 320; 2 Ala. 326. The rule as deduced from ...
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