Scott v. Doneghy , 56 Ky. 321 ( 1856 )

Judge Simpson

delivered the opinion of the court.

Although in an action by ordinary proceedings, when the plaintiff desires to obtain an attachment, the Code requires him to file, in the clerk’s office of the court in which the action is brought, an affidavit, showing the nature and justness of his claim, and the amount which he believes he ought to recover, together with the grounds upon which he relies for an attachment; yet if the petition itself contains a statement of all these matters, and is sworn to, it should be regarded as supplying the place of a separate affidavit, which, under such circumstances, may be dispensed with altogether.

And where, as in this case, the action is by equitable proceedings, and the petition shows sufficient grounds for an attachment, and is verified by the oath of the plaintiff, no separate affidavit is required. And as this was substantially an action by a surety against his principal, to obtain indemnity against the debt for which he was liable, or to compel the principal to pay the debt, the proceedings were governed by sections 728, 729, 730, of the Civil Code.

By the section last mentioned, the surety can obtain any of the provisional remedies contained in title 8, upon the grounds and in the manner therein prescribed. In some of the cases mentioned in that title, an attachment may be issued by the clerk of the court without an order of the court, or of a judge, and in other cases such an order is necessary to authorize the clerk to issue the attachment.

In this case the debt was due when the action was commenced, and in all such cases the clerk can make the order of attachment himself. If the action be brought before the claim be due, then an order of the court or of a judge is necessary. As the section referred to does not state explicitly how the order of attachment shall be made in a case of this kind, the question has tobe determined by analogy; andas the order can be made by the clerk, whenever the action is brought upon a claim that is due, we think he was authorized to make it in the present case.

4. A payee And first indorser of a bill of exchange is liable to the second indorser, who takes np the bill, for the full amount of the bill, unless there bean agreement for a different degree of responsibility.

The controversy, upon its merits, was clearly in the plaintiff’s favor. The attitude of the parties upon the bill determined their respective liabilities. The plaintiff, as second indorser, had a right to look to the first and prior indorser for the amount of the bill, unless the legal liability of the parties, arising from their relative position on the instrument, was changed by an agreement between them, entered into at the time the bill was made. The testimony is insufficient to establish such an agreement, and the plaintiff was therefore entitled to a judgment.

The grounds of the attachment were fully sustained by the testimony, and the order to sell the property which had been attached was proper.

Wherefore, the judgment is affirmed.