Faver v. Bank of the State , 10 Ala. 616 ( 1846 )

COLLIER, C. J.

The first section of the act of 1840, amendatory of the attachment law, so far as it relates to the State Bank and its Branches, declares that whenever it shall become necessary for either of these banks to sue out an ori* ginal attachment, “it shall be lawful to sue Out such attachment, upon the oath of the president, cashier, or other officer or agent of such bank, that he has reason to believe, and does believe,” <fcc. It is provided by the second section, that “ said banks are hereby severally authorized to taire out attachments according to the first section of this act, on the application of any indorser or'security to the bill, note, or other demand, and on satisfactory showing of such indor-ser or security, on oath or otherwise, that either of the grounds specified in this act exists.” [Clay’s Dig. 64, §§ 46, 47.]

The second section of the act cited, in authorizing attachments to be sued out according to the first, has reference to the causes which the latter prescribes, and does not mean that the affidavit shall be made by an officer, or agent of the bank. As the bank is supposed to be the legal proprietor of the debt to be recovered, the attachment must of course be taken out in its name, though “ the application” be made by an “ in-dorser or security.” And it is expressly provided that there shall be a satisfactory showing of such indorser or security on oath or otherwise, that either of the grounds specified,” <fcc., exist.

It could not have been the intention of the legislature in enacting the second section, to authorize the bank to cause an attachment to issue upon the oath of a person named in the first, upon being assured by an indorser or surety, that a party primarily liable upon paper, had subjected himself to such process. The first section had already conferred such power, whenever an officer or agent of the banks would make an oath that either of the grounds designated, really existed; and to have re-enacted itmore specially, wouldhave been an act of supererogation. If then, any other construction be permissible', we must accord to the second section a different meaning, according to the rule which requires a statute to be so interpreted as to be operative in all its parts — ut res magis valeat. quam per eat. We think it clear, that its object was to aid indorsers and sureties, and facilitate the remedy by attachment by permitting a bank to issue it upon the oath of one of them, though an officer or agent might not be prepared to verify the existence of either of the grounds prescribed.

In requiring a “ satisfactory showing” to be made “ on oath or otherwise,” we are to understand that the ground is to be laid in the manner prescribed by law, viz, by oath or affirmation made before some competent officer. The bank by adopting it, and consenting to prosecute an attachment issued thereon, clearly indicates that it is satisfactory. This view may serve to show that the supposition that the “ showing” of the “indorser or surety” was intended to satisfy the bank that there was a good cause for issuing an attachment, but an officer or agent must himself make an oath in order to obtain it, is altogether unfounded.

It is a necessary sequence from what has been said, that the affidavit was made by a proper person — no objection has been made to its sufficiency in other respects, and none has suggested itself to us. The judgment of the circuit court is consequently affirmed.