only in the event that the registers are mistaken | plea, and the demurrer was overruled by the that the costs are taxed to the city. court below, and judgment was entered for the defendant. While it would be desirable in every case that as few burdens as possible should be thrown on the city, still the successful operation of so important a law should not be impaired or hindered by the possible contingency of some costs falling upon the Corporation. Judgment affirmed. The action being for a call upon stock, under the decree of the 14th of December, 1880, as set forth in the declaration, it would seem, upon reason and principle, that the same conclusion reached in the preceding cases should be maintained in this. But the Insolvent Law of this State, under which the defendant was discharged, makes no special provision for the character of debts to be proved, or as to the Ex-mode of proving debts or claims against the insolvent estate. Nor does it provide, as in the Bankrupt Law, that the discharge shall only operate upon such debts as were proved or were provable against the insolvent estate. But it provides in the most unqualified terms that the discharge shall be "from all debts and contracts made before the filing of his petition, and he shall be released from all such debts and contracts; and such discharge and release shall embrace all cases where he is indorser or surety," 1. The insolvent laws of this State discharge from all debts and contracts made before the filing of the insolvent's petition, but can have effect only as between citizens or residents of this State. 2. The insolvent laws of one State cannot discharge the contracts of citizens of other States; they have no extraterritorial operation; and it makes no difference that the action to enforce the contract is brought in a court of the State where the debtor resides and under whose insolvent laws he obtained his discharge.* 3. A discharge under the insolvent laws of this State is no defense to an action for an assessment on the stock of a cor poration of the State of Virginia. The contract of subscription is governed by the laws of that State, and is to be per formed there. (Decided March 10, 1886.) PPEAL from a judgment of the Court of a plea of insolvent's discharge in an action to The case is sufficiently stated in the opinion. Messrs. Sebastian Brown, Stewart Brown and J. Alexander Preston, for appellee. Alvey, Ch. J., delivered the opinion of the court: This case is in all respects similar to the cases of Glenn v. Howard, and Glenn v. Savage, 2 Cent. Rep, 643, except that instead of the defense of final discharge of the defendants under the Bankrupt Law of the United States, as in those cases, we have here the defense that the defendant had duly obtained a final discharge under the Insolvent Laws of this State, on the 15th of September, 1879, and that the alleged cause of action accrued before the filing of his petition. The plaintiff demurred to this See Phelps v. Borland, 5 Cent. Rep. (N. Y.) 421, and note. etc. These terms are certainly very comprehensive, and anything that falls within the definition of debt or contract, would seem to be embraced by them; and in view of the decisions of the court in the cases of Berry v. Mc Lean, 11 Md. 92; State v. Culler, 18 Md. 419; and Reynolds v. Mut. Fire Ins. Co. 34 Md. 280, and especially the two latter cases, it would seem to be doubtful whether a contract of the nature sued on in this case is not embraced within the operation of a discharge under the Insolvent Law of the State. But however this may be, it is very clear that the insolvent discharge can form no bar to the Here the contract sued recovery in this case. on was made with a corporation of the State of Virginia. That corporation derived all its pow ers of existence and its franchises from that State; and there it had its principal office and seat of its governing body. The contract of subscription to its capital stock was to be per president and directors of the company. The law of the State, and of the creation of the corporation itself, fixed the terms of the contract of subscription; and the defendant is conclusively presumed to have contracted with reference to such law. He, therefore, impliedly subjected himself to such laws of that State as affected the powers and obligations of the corporation, and as prescribed the terms, and the manner of performance, of the contract made with such corporation. Canada Southern R. R. Co. v. Gebhard, 109 U. S. 527, 537-8 [Bk. 27, L. ed. 1020]. The plaintiff in this case was not a party to the contract, but is only an officer entrusted with executive powers under a decree of a competent court of Virginia, made to secure the performance of the obligations of the corporation, for which the defendant, as a stockholder, is in part bound; and it is not competent for him to invoke the Insolvent Laws of Maryland to discharge him from that obligation. The Insolvent Laws of the State profess to operate upon all contracts, without regard to the residence of the creditors; but this general provision of the statute is necessarily qualified by the Constitution of the United States and by the decisions of the supreme court declaring the meaning and effect of that Constitution upon the legislation of the several States. The State possesses the unquestioned power of passing insolvent laws, if not in conflict with the legislation of Congress upon the subject; but insolvent laws passed by a State can have operation and effect only as between the citizens or residents of that State; and they can have no effect whatever to discharge contracts made with citizens or persons of other States. In other words, the insolvent laws of one State MAR., ed, he may begin de novo and obtain another, but he cannot go on and obtain successive attachments upon two returns of non est to writs of summons issued in the same attachment proceeding. (Code, art. 10, § 25, construed.) (Decided March 17, 1887.) cannot discharge the contracts of citizens of A Court of Common Pleas of Baltimore City, other States, because such laws have no extraterritorial operation. And such being the case, it makes no difference whatever that the action for the enforcement of the contract is brought in a court of the State where the debtor resides, and under whose insolvent laws he has obtained his discharge. The contract not being subject to the operation of those laws, the defendant's discharge can furnish him no defense, no matter in what court the suit may be brought. This is the clear purport of the decisions of this court, as it is of the decisions of the Supreme Court of the United States, made upon this subject; and it is therefore clear that the plea of the insolvent discharge forms no bar to this action, and the demurrer thereto should have been sustained. Frey v. Kirk, 4 Gill & J. 510; Poe v. Duck, 5 Md. 1; Ogden v. Saunders, 12 Wheat. 358 [25 U. S. bk. 6, L. ed. 656]; Boyle | v. Zacharie, 6 Pet. 348 [31 U. S. bk. 8, L. ed. 423]; Baldwin v. Hale, and Baldwin v. Bank of Newbury, 1 Wall. 223, 234 [68 U. S. bk. 17, L. ed. 531, 534]. It follows that the judgment of the Court below must be reversed, and the cause remanded for a new trial. Adrian L. MELLEN. 1. The proceeding by way of attachment against a nonresident or absconding debtor is regulated entirely by statute, and compliance with the statute is essential to the validity of the proceeding. 2. If the summons be returned non est and the defendant does not appear to the short note to contest the claim, nor give bond to dissolve, then if the attachment be quashed on motion or petition for defects apparent upon the face of the proceeding, or in any other mode, or for any other reason, it seems that the whole statutory proceeding and every part of it, including the summons and short note, fall with it and are forever out of court, unless the quashing order be reversed on appeal. 3. Hence it seems that when an attachment has been so quashed the short note case connected therewith is at an end, and the subsequent return of non est to an alias summons will be of no avail for any purpose whatever. 4. When an attachment issued against a defendant as an absconding debtor has been quashed for errors in the proceedings or for other cause which the attaching creditor thinks can be correct 454 PPEAL by plaintiff from an order of the quashing an attachment. Affirmed. son, Irving, Stone and Bryan, JJ. Argued before Alvey, Ch. J., Miller, Robin The case is stated in the opinion. erick W. Story and John Hinkley, for Messrs. Edward Otis Hinkley, Fredappellant: in striking out the judgment for attachment The appellant contends that there was error stated. after two returns of non est in the manner tent jurisdiction, which could not be stricken 1. It was a judgment of a court of compeout in this way. an appeal from that judgment. 2. If there was error, it was the subject of ments for attachment after two returns of non 3. Code, art. 10, $21, does not apply to judgest. Campbell v. Morris, 3 Harr. & Mc H. 553. of inquiry after judgment, except on motion The evidence given at trial is not the subject a judgment and must stand. for new trial, and this is not such a case. 66 It is The Code, 25, says: Upon proof of his claim," the judge must have had proof and it must have been satisfactory. If any inquiry could be made the proceeding would be found to be conformable to law. Section 25, says: "Proof of his claim as herein before required." This refers back to section unless there be an affidavit. 4, 66 it stood —“and making such proof of his acIn the original Act of 1715, chap. 40, § 2, 3, tion as the said respective courts shall see fit." XXVI, p. 120 et seq. and chap. II, p. 8 et See Hinkley & Mayer, Attachment, chap. seq., Poe, Pr. § 471, p. 571; Evans, Pr. pp. 94, 119, 120; Barney v. Patterson, 6 Harr. & J. 200. The short note or declaration of the plaintiff against the defendant in every attachment is a distinct case, and leads to a different issue and judgment from the attachment itself, which last, when laid in hands of a garnishee, is a case between defendant as if another plaintiff against the garnishee; or this last, if property be taken, is a proceeding in rem, as to which claimants may come in. has often been held. Griffin, 23 Md. 428, 429; Lambden v. Borcie, 2 Hinkley & Mayer, Attachment, chap. VIII, p. 29. The short note will serve as a declaration; that the writ of attachment be quashed and set and no other need be filed. Barr v. Perry, 3 Gill, 322; Spear v. Griffin, 23 Md. 428. The affidavit was rightly made at the commencement of the action, as well by the practice of common law as under the Act of 1886, chap. 184; and no new affidavit is necessary after the second non est. In Locke on Foreign Attachment, 79 Law Lib. pp. 1, 2, the origin of foreign attachment at common law is given. On p. 6, it is said that the common-law practice was to file an affidavit at the beginning of the suit. The last chapter in Locke on Attachment, pages 68 et seq., shows the practice in sequestration, as it is there called, being our present attachment in cases against absconding debt ors. See also Drake, Attachment, pp. 1, 2. The common law is, by the Declaration of Rights, the law of Maryland, except so far as changed by statute. Our attachment law is of common-law origin. Barney v. Patterson, 6 Harr. & J. 200; Turner v. Lytle, 59 Md. 203. It is true that it is said in several cases that the attachment law is of statutory origin, and must be construed strictly, because it is in derogation of the common law. See Boarman v. Israel, 1 Gill, 381; Risewick v. Davis, and McPherson v. Snowden, 19 Md. 91, 233. Mr. Theo. B. Horwitz, for appellee: The obvious meaning of section 25, art. 10, Attachments, p. 50, Code, and the well established practice in all the law courts of the City of Baltimore, is that the affidavit required by section 4, page 45, must be made after the second summons has been returned non est against the absent defendant. The order of July 12, 1886, is a printed order, and was signed by Judge Duffy without a moment's reflection, and, as he says, "as an order of course," and, therefore, improvidently. Code, art. 10, § 25, p. 50; Risewick v. Davis, and McPherson v. Snowden, 19 Md. 91, 93, 233. Miller, J., delivered the opinion of the court: tachment. This appeal is from an order quashing an atThe proceedings in the case must be stated with some particularity in order that it may be clearly seen how the questions to be disposed of arise. It appears from the record that Randle procured an attachment or warrant to be issued out of the court of common pleas against Mellen as an absconding debtor. The evidence of debt produced before the magistrate was a draft for $1,219.50, drawn by Mellen at Monterey in Mexico, upon a New York firm, payable to the order of Randle and protested for nonpayment. The short note in the usual form declares upon this protested draft. The writ of attachment and the usual summons, provided for in section 10, art. 10, of the Code, were issued on the 21st of May, 1886, returnable to the June rule day, which was the 14th of June. On the 11th of June, and before the return day, Mellen's son, in behalf of his father, filed a petition to the judge of the court, under section 21, art. 10, of the Code, praying aside. In this petition the son states, among | other reasons why the writ should be quashed, that this draft was obtained from his father by Randle without any consideration and upon a threat. The judge thereupon, and on the same day (11th of June), and in compliance with the requirements of this section of the Code, ordered the sheriff to return the writ and the proceedings thereunder immediately before him, and set the petition down for hearing on the 19th of June. The sheriff then made his return in obedience to this order. The return to the summons was in the usual form "non est, and copy set up at the court house door," and to the attachment, "attached as per schedule," and laid in the hands of several garnishees. The record then states that afterwards, on the 19th of June, “ an alias writ of summons was issued in the usual form to the sheriff returnable to the July rule day" (which was the 12th of July)" and was by him duly returned non est." After this, on the 7th of July, a demurrrer (as the record states) was made to the petition of Mellen's son, in open court; and the court overruled the same and quashed the attachment. Notwithstanding the attachment was thus quashed on the 7th of July, Randle afterwards, on the 12th of the same month (the return day of the alias writ of summons) filed a petition in the case to the judge, setting forth that Mellen had been twice successively returned non est by the sheriff (the returns being these already mentioned), and praying judgment for the writ of attachment to issue against his lands, tenements, goods and chattels; and on the same day the judge ordered the writ to issue. This writ with the accompanying summons for Mellen was accordingly issued returnable to the August rule day, which was the 9th of that month. On the 31st of July, and before the return day of this second writ Mellen's son in behalf of his father filed another petition (the averments of which it is not necessary to state) under the same section of the Code, praying that the order directing this attachment to issue be rescinded, and that this attachment be also quashed and set aside. The judge thereupon passed the son's order, and the same proceedings followed as in the case of the first attachment. Upon the first final hearing of this second petition which was, as the record states, after evidence had been taken for and against the same, the court, on the first of December, 1886, passed an order rescinding the order which had directed this second attachment to issue, and quashed the same and the proceedings thereunder. From this order Randle has taken the present appeal. It is manifest that counsel for Randle, in conducting the case in the court of common pleas, proceeded upon the assumption that what is usually called the "Short Note Case," was not affected by the quashing of the attachment on the 7th of July. They also assumed that they had the right to order an alias summons on the 19th of June, after the one issued with the attachment had been returned non est, and to use these two returns in the short note case for the purpose of obtaining an attachment under section 25, article 10 of the Code. But we do not so understand or interpret the attachment law. In our opinion neither of these assumptions is warranted by any provision of that law, nor by any established practice thereunder. The proceeding by way of attachment against a nonresident or absconding debtor is, in this State, regulated and governed entirely by statute. Although now in common and daily use it is still, nevertheless, regarded as an extraordinary proceeding, available only in those cases expressly provided for in the statutes authorizing it, and only then capable of being maintained by a substantial compliance with the statutory requirements apparent upon the face of the papers. The jurisdiction conferred upon the courts in such cases is uniformly held to be special and limited, distinct from and not embraced within their general jurisdiction, and cannot be legitimately exercised, unless the attaching creditor pursues the mode pointed out in the statute, and no intendment or presumption will be made in its support. 2 Poe, Pl. & Pr. § 502. The mode of obtaining an attachment on warrant is familiar to the profession, and is clearly prescribed in the Code. One of these provisions is that "There shall be issued with every attachment a writ of summons against the defendant, and a declaration or short note expressing the plaintiff's cause of action shall be filed, and a copy thereof shall be sent with the writ to be set up at the court house door by the sheriff or other officer." Code, art. 10, § 10. This is purely a statutory requirement, but compliance with it is essential to the validity of the attachment proceeding. If, however, it is complied with, the statute is gratified. If the summons is issued with the attachment, and the short note is filed, and a copy of it is sent with the writ, and this copy is set up at the court house door, nothing further is required to be done in order to give the defendant in the attachment notice of the proceeding. If the defendant be returned summoned, or if he voluntarily appears upon the return day of the writ and contests the claim of the attaching creditor, then it becomes a short note case which must be tried before that against the garnishee, or the property attached, for the simple reason that if in, this trial the claim should be defeated there will no longer remain any ground upon which the attachment can rest, and quashing it will follow as a necessary consequence. The defendant can also appear to the short note, and have the attachment dissolved by giving bond to satisfy any judgment that may be obtained against him in the case. Code, art. 10, § 20. When this is done the short note case remains on the docket for trial, and the attachment is dissolved because the bond takes its place and secures to the plaintiff all he could obtain by its successful prosecution. But if the summons be returned non est, and the defendant does not appear to the short note to contest the claim, nor give bond to dissolve, then if the attachment be quashed on motion, or upon petition, as in this case, for defects apparent upon the face of the proceeding, or in any other mode or for any other reason, we think it quite clear that the whole statutory proceeding and every part of it, including the summons and the short note, fall with it, and are forever out of court unless the quashing order be reversed on appeal. When, therefore, this attachment was quashed, on the 7th of July, the short note case was at an end, and the subsequent return of non est to the alias summons was of no avail for any purpose whatever. But, assuming that we are wrong in this: Do the two returns of non est to the two writs of summons issued in this attachment case, authorize another attachment to be issued under the twenty-fifth section of this 10th article of the Code? This question requires a construction of that section; and in this we discover no difficulty whatever. The previous sections point out the mode and prescribe the conditions, for obtaining an attachment on warrant. This section provides how an attachment which shall have the same effect may be obtained in a different mode, and without a warrant from a magistrate. It declares that "When two summons have been returned non est against the defendant, in any of the courts of law of this State, the plaintiff, upon proof of his claim as hereinbefore required, shall be entitled to an attachment; and the judge of the court where such action is pending shall order such attachment to issue, and the same proceedings shall be thereupon had as in attachments issued against absconding debtors." The plain meaning of this is that when an action is pending in any court of law, which the court in the exercise of its general jurisdiction has the power to try and decide, provided jurisdiction over the person of the defendant be not obtained by service of the summons upon him, and in such a case there are two returns of non est to two successive writs of summons, then the judge is authorized to regard such returns as evidence that the defendant is a nonresident or absconding debtor; and if the plaintiff's cause of action be such as would entitle him to an attachment on warrant, the judge is authorized and directed to order the attachment to issue, provided the plaintiff produces before him the same proof of his claim that he would be required to produce before the magistrate in order to obtain his warrant to the clerk of the proper court to issue an attachment. When the attachment is thus ordered by the judge it is subject to the same conditions, and the same proceedings must be had upon it as if it were an attachment on warrant, with the single exception that the order of the judge supersedes and takes the place of the warrant of the magistrate. But the court in executing this power can look only to the returns made to the writs of summons issued in the action then pending before it, which has been brought in the ordinary way, and which invokes the exercise of its general jurisdiction. It cannot look to returns made in an attachment proceeding under a special limited and statutory jurisdiction. This is not within the contemplation of this section of the Code nor within the plain meaning of the language used; and to allow it to be done would be to allow an unauthorized and oppressive use of the writ. If his first attachment be quashed for errors in the proceedings, or for any other cause which the attaching creditor thinks can be corrected, he may begin de novo and obtain another, but he cannot go on and obtain successive attachments upon two re turns of non est to writs of summons issued in the same attachment proceeding. In either view of the case, therefore, there was no error in the order appealed from and, It must be affirmed. Edwin BLEAKLY et al., Appts., V. Augusta E. BLEAKLY et al., Exrs. 1. A sale of real estate, under a power created by a will, should not be set aside, if the trustee has exercised that care and caution which would be observed by a prudent owner in regard to a sale of his own property, and has obtained a good price. 2. Lands lying about ten miles from Baltimore and surrounded by other lands occupied and used for farming purposes may properly be sold as a farm by the trustee, although there is evidence from some of the witnesses that the land may, at some future day, become valuable for building purposes. (Decided March 15, 1887.) APPEAL from an order of the Orphan's Court for Baltimore County, overruling exceptions and ratifying and confirming an executor's sale of realty. Affirmed. Argued before Alvey, Ch. J., Stone, Robinson, Irving, Miller, Bryan and Yellott, JJ. The facts appear from the opinion. Yellott, J., delivered the opinion of the court: On the 17th day of August, 1885, Samuel H. Bleakly executed his last will and testament, which was admitted to probate on the 21st of October in the same year. The appellees, his executors, in conformity with the power conferred on them by the sixth clause of said will, proceeded to sell his real estate in separate parcels, and reported the sales thus made to the Orphans' Court of Baltimore County. "The Grove Farm," containing fifty-eight acres and a fraction of an acre, was sold at public auction; the purchaser bidding for it $130 per acre. Exceptions to this sale having been filed, testimony was taken; and, after argument by counsel, the orphans' court, on the 26th day of October, 1886, passed an order overruling the exceptions and ratifying and confirming the sale. From this order an appeal has been taken. The evidence shows that this property lies in a neighborhood about ten miles from the limits of Baltimore City and is surrounded by other lands occupied and used for farming purposes. The house is old, the barn has been burned down, and the land is unproductive in its present condition. Several of the witnesses estimated the value of the property at a price much above that for which it was actually sold; but, when cross examined, these witnesses admit that their estimates are based upon the suppo | sition that the land may, at some future day, become valuable for building purposes. Most of these witnesses seem to be wealthy gentlemen, owning land in the neighborhood, which they are not compelled to sell and which they may, therefore, retain in their possession, and indulge in the pleasing anticipation of an increase of value at some future period. But there is no proof in this cause tending to show that this property, at quite a distance from the city and very near the center of Balbuilding purposes. It is the duty of the execu timore County, is, at this time, in demand for tors to sell it now; they are compelled to sell it now, and must therefore sell it in its present condition as a farm. They cannot be permitted to wait for years, indulging in expectations which may never be realized. They have, therefore, sold it as a farm; and all the testimony, when carefully weighed and considered, tends to show that they have sold it at a fair price, after advertising in Baltimore, Carroll and Frederick Counties, and in Baltimore City. Everyone who wished to purchase had an opportunity to attend the sale, and no unfairness in any of these proceedings is established by the proof. There is, certainly, a recognized distinction between a sale made under a decree and one made in pursuance of a power created by a deed or will. But in either case, if the trustee has exercised that care and caution which would be observed by a prudent owner in regard to the sale of his own property, and has obtained a good price, the sale ought not to be set aside. Andrews v. Scotton, 2 Bland, 638; Gould v. Chappell, 42 Md. 468. A careful examination of the evidence in the record leads to the conclusion that the executors have fully and faithfully performed their duty and have made a sale which ought not to be set aside. The order appealed from should, therefore, be affirmed. It might be seriously doubted whether this appeal was taken in time under the provisions of article 5, section 40 of the Code. But it is not necessary to determine this question, as the ruling of the court below will be affirmed on the merits as disclosed by the proof. Order affirmed. |