Dow, Wilson & Herreman v. J. S. Smith & Co.

By the Court.

Lumpin, J.

delivering the opinion.

Numerous exceptions were taken to the rulings of the Court below in this case ; but two only have been argued and insisted upon before us.

It appears that the Smiths, who were partners, having a judgment on attachment against Birdsong & Sledge, and money belonging to the defendants being in Court, subject to its order, moved to have it applied to their demand. This application was resisted by the plaintiffs in error, who were also judgment creditors, on the ground, that the bond given to Birdsong & Sledge, by the Smiths, when they sued out their attachment, was void— the firm name having been signed to it by one of the partners.

Without stopping to inquire whether or not this objection is good in the mouth of third persons, it is a sufficient answer to make to it, to say that it is authorized by a fair construction of the Act of 1838. See Pamphlet, p. 165.

[2.] Dow, Wilson & Herreman proposed to traverse the truth of the affidavit upon which the attachment of the Smiths was issued ; and the refusal to allow this is the next error complained of.

It is exceedingly questionable whether this could be done by the defendants themselves, especially after the appearance term of the attachment. We are quite confident that third persons had no such right after judgment had been rendered on the attachment.

The Inferior Court was right, therefore, and the judgment of the Superior Court right, in refusing the certiorari.