
    Prentiss & Carter, Garn. of Story vs. Gray
    where the cei-tj. to an affidavit, on ■which a warrant attachment to issue, stated that one common for the county of SiifTolk, in 'the c'omnumtvealth ot' Massachusetts, duly qualified and acting m said capacity, and that full faith and oredit ought to be given to his legal attestations in court and out, m his said cnnieity” — Held, that as it did not appear by the certificate ot the cierk that the judge had authority to administer An oath, as directed by tie act of 1795, eh 5S, s. 2, the proceedings were do-fective
    Whether or not the foilowingáve such lega} ‘defects in the nffidavc, and warrant directing an attachment to issue, as to defear tire attachment? i. The affidavit d,d not alb*# that the plaintiff was a citizen of the state of Massachusetts* or of any particular state, but that he was oí -Boston* merchant, a citizen of the United States, 2, The plaintiff did not swear that, Jie produced th^ note on winch the debt was founded, but it was merely recited by the judge that the note was produced, 3. The war» rant of R G, on which the attachment issued, did not-state, nor was it set forth, that U<£ was a .justice of the peace.
    Appeal from Baltimore County Court. This was an at-tachmcnt on warrant, issued the 21st of January 1811. The affidavit upon which the warrant for issuing the attachment was founded, is in these words: “Commonwealth of Massachusetts, Suffolk county, sc. Be it remembered, that on this 15th day of January, in the year 1811, before (he subscriber, judge of the court of common pleas in and for the county of Suffolk, in the commonwealth aforesaid, personally appears William Gray esquire, of Boston, in the said county, merchant,and makes oath on the Holy Evangelists of Almighty God, that Augustus Story, not being a citizen of Maryland, and not residing therein, is bona fide indebted to him the said William Gray, of Boston aforesaid, merchant, (he being a citizen of the United Staten,) in the sum of fifteen thousand dollars of the lawful money of the United Stales, over and above all discounts. And the said William Gray at the same time producing to the subscriber the original note, which is hereunto annexed, subscribed by Bradstreet and Story, promising to pay the game sum to Augustus Story, or to his order, and by the said Augustus Story endorsed, for a valuable consideration, to the said William Gray, whereby the said Augustus Story became so indebted as aforesaid to the said William Gray. And the said William Gray also maketh oath, that he doth know that the said Augustus Story is not a citizen of the state of Maryland, and that he doth not reside therein. Sworn before me, Win- Donnison, judge of the court of Common Pleas.” Then follows a certificate by the Clerk of the Court of Common Pleas for Suffolk county, under the seal of the court, certifying “that the honourable William Donnison is one of the judges of the court of common pleas for the county of Suffolk, in the commonwealth of Massachusetts, duly qualified, and acting in .said capacity; and that full faith and credit ought to be given to his legal attestations in court and out, in his said capacity.” The promissory note referred to in the affidavit was annexed. The warrant was dated the 31st.of.January 18H, and under the hand and seal of Robert Gorsuch. directed to the clerk of Baltimore county court, requesting him to file the affidavit and annexed promissory note, and to issue an attachment, &c. The attachment was issued on the 21s.fc of January 1811, by the clerk of Baltimore county court, reciting the warrant from Robert Gorsuch, esquire, one of the justices of the peace for Baltimore county, directed to the sheriffnf Baltimore county, and commanding him to attach the lands, &c. of the said Augustus Story, to the value of SI 5,000, according to the act of assembly, &c, and make known to the garnishees, &c. A capias ad respondendum also issued on the 2lst January 181 Ij and a short note was filed, and copy sent, with the writ. At March term ¡1SH» 1he sheriff returned the writ of .attachment endorsed, “Laid in the hands of John Miller .Prentiss and Robert E. Garter, trading under the firm of Prentiss Carter, the ¿2d January 1811, in the presence of Ashad Hussey and John Stevenson — Wm. Merry man sheriff'” The , capias was returned endorsed, “N. É,” The garnishees appeared and defended, &c. At March term 1812, the plaintiff’s declaration was filed, and the garnishees pleaded non as-sump sit by Augustus Stoiy, and nulla bona-, to which there were general replications and issues joined. Verdicts for the plaintiff, damages assessed to §1.6,297 50, upon the first issue, and goods and chattels in the garnishees’ hands to the value of §4,338 75, upon the second issue. The verdicts were taken, subject to the opinion of the court, on a statement of facts, and subject also to all objections that might be legally made, either to the form or substance of the attachment proceedings in case no verdict had been rendered. The facts stated were these. — On the 26th of January, 1811, Bond and Prentiss obtained an attachment against Story, which was laid in the hands of the present garnishees, as also in the hands of Thomas Marean, another gar.nishee of. Story, and returned to the same term of the court as the attachment in the present case. There were funds and effects belonging to Story in the hands of the present garnishees, at the time of the verdict, to the amount of 4,044 49, and at the same time there were funds and effects belonging to Story, in the hands of Marean, to the amount, of §3,540 43. The questions submitted to the court were, 1. Whether the plaintiff was entitled to recover the funds of Story, in the hands of the present garnishees? If so, then judgment was to be entered on the verdict for §4,044 49. And 2d., Whether he was entitled to recover, in addition to the funds aforesaid, the funds of Story in the hands of Marean, in the present suit? If so, then judgment to be entered on the verdict for §7,584 92. It was admitted that the judge, before whom the affidavit in the attachment proceedings was made, was not, as a judge of the court of common pleas, competent, by the constitution and laws of Massachusetts, to administer an oath out of court. But'that he was at the time duly commissioned, and acting as a justice of the peace for the county of Suffolk, and authorized as such, to administer an oath out of court. A pro forma judgment was entered on the case stated for the plaintiff, and condemnation on the verdictfor §7,584 92, and costs. From that judgment the garnishees appealed to this court.
    The cause was argued before Buchanan, Earle, Johnson, and Martin, J.
    
      Williams, for the Appellants, contended
    1. That upon the case-stated, the appellee was not entitled to recover the money or property of Story, either in the hands of the appellants, or of Marean, because the proceedings, on which the writ of attachment issued, were defective. 2. That he was not entitled to recover the property of Story in the hands of Marean, because his attachment had never been laid in Marean’s hands, even if his proceedings were sufficiently regular to bind the property in the hands of the appellants. As to the first point — The appellee’s proceed-iiigs are defective, inasmuch as, 1st. The affidavit does not allege that the appellee was a citizen of the state of Massachusetts, or of any particular state, but only that he was a citizen of the United States. The first section of the act of 1795, ch. 56, enables only citizens of some one of the United States to have the benefit of the act. He contended that there were citizens of the U. S. who did not belong to any state; as those who live in the several territories, and could not, under this law, issue an attachment, consequently it was not clear by the affidavit that the ap-pellee was entitled to be a plaintiff in attachment. S. The affidavit is defective in this, that the affirmant does not swear that he pioduces the note on which the debt is found-ded; but it is merely recited by the judge that the note was produced. 3. The warrant of Robert Gorsuch, on which the writ of attachment issued, does not state, nor is it set forth in the proceedings, that he was a justice of the peace; consequently it does not appear that the clerk of the county court was authorised to issue the writ. lie referred to Jackson vs. Stiles„ Coleman & Caine’s Cases, 468, where the supreme court of New York decided, that the jurats of affidavits must be signed by the judges before whom taken, with the addition of their official descriptions. 4. The certificate of the clerk, which is annexed to the affidavit, is defective, as it only certifies that the judge, who administered the oath, was a judge, and that full faith and credit ought to be given to his acts in and out of court: without certifying that he had authority to administer such oath, which is required by the second section of the act of 1795, ch. 56, and without which the affidavit cannot be good and sufficient evidence. 1st. Admitting, for the sake of argument, that the expressions in the certificate furnish grounds for implying that the judge had the authority to administer the oath, yet the court are not at liberty to make the inference under the provisions of the above section. In Morris vs. Ludlam, 2 II. Blk. Rep. 362, in a plea set up by a garnishee, who had been obliged to pay money to the plaintiff in attachment under the custom of London, the omission to state that the debt was due in the city of London, although necessarily to be implied, subjected him to a re-payment to his original creditor. Again, the constitution and judiciary system of the U. S. provide that the circuit courts of the U. S. shall have jurisdiction (among others) of cases In which the plaintiff and defendant are citizens of different states, or one of the parties is an alien. The courts of the U. S. have decided that this jurisdiction must appear upon the face of the proceedings. And in Bingham vs. Cabot, 3 Dali. Ref). 382, in which case the declaration set forth that the plaintiffs were of Boston, in the district of Massachusetts, the supreme court of the U. S. decided that it was not sufficiently shown that the plaintiffs were citizens of Massachusetts, although they were stated to be of Boston, &c. and though eyen had tfiey been aliens, it would have been sufficient to give the jurisdiction. In Turner vs. Enrille, 4 Dali. Hep. 7, the declaration stated that the plaintiff was Marquis de Caso Enrille, of --Island, and the defendants were of Newbern, in North Carolina, the supreme court decided .that it-was not sufficiently averred that'the plaintiff was an alien, or that the defendants were citizens of North Caro-Una. In Abercrombie vs. Dupuis, 1 Crunch, 343, the declaration represented the plaintiffs to reside in the state of Kentucky, anil the defendants in the state of Georgia, yet the supreme court decided there was no sufficient averment iff citizenship, fn Hodgson vs. Bowerbank, 5 Crunch, 303, the declaration stated the defendants to be merchants of the district of Maryland, and yet the court determined that the omission of the word citizens was a fatal defect, and that it was not-enough to state them to be of Maryland. In Brookes vs. Hunt, Coleman and Caine's Cases, 468, an Omission of that which was easily to be inferred, was held id be fatal in an affidavit. The courts in this state have decided, that the omission by the justices who take acknowledgments of deeds, to certify that a feme covert, who comes before them,' “makes her acknowledgment without being induced thereto by fear or threats of ill usage of her husband, or fear, of his displeasure,” is fatal, although they certify that the acknowledgment was made teilling/y and freely. Although it is impossible that a feme covert ".could make an acknowledgment of a teliriquishment of her interest in an estate, willingly and freely, if it were made under a fear or threat of ill usage from her husband, dr fear of bis displeasure. In Smoot’s Adnir. vs. Bun-bury’s Ex’r. 1 Harr. & Johns. 136, it was decided, that certain words in a probate prescribed by law, being omitted, the probate was deemed’to be defective. The provincial court quashed an attachment under the act of 1729,, ■ ch. 8, in Thompson vs. Towson, 1 Harr and Mullen. 504, on the ground that the affidavit did not state that the “debt Was bona fide due,” although it set forth that no part of the money had been paid more than credit given, &c. It Was also there contended, that the magistrate’s warrant was defective, because he Certified that the debt was due as ap~ peared by a bond, when he should have certified it to be due positively, without reference. These several cases show, that the omission to set forth expressly, that which is required to appear by the proceedings, is fatally defective, although enough is stated, from which that which is so material may, or even must be, irresistibly inferred. In the au-thoritiés referred to it will be found, that the provisions of the law, which require these' particular and special aver-ments, are far less explicit and less precise than the expressions in the "second section of the act of 1795. eh. 56, with which this, certificate purports to comply. This section declares that the affidavit shall'not be good and sufficient evidence, unless the fact is expressly averred that the judge had authority to administer such Oath. Itexcludes any other evidence of suoh authority} than the certificate, Std. But there is not enough set forth in this certificate, from which it may be inferred thatthejudgebad authority toadmi-nister the oath. The certificate merely states that the judge was a judge of the court of common pleas of Massachusetts, and that full faith and credit ought to be given to his attestations in and out of court. This is only certifying that he was a judge, arid as such full faith should he given to his attestations. Rut this statement of his official character, and of the credence due to his official acts, does not come up to the provisions of the second section of the act of 1795, ch. 56, which require that the judge should be of that character, and possessed of those peculiar powers, which entitle him to administer civil oaths out of court. The whole amount of the certificate is, that the person before whom the affidavit was made, was a judge; and unless it can be shown that it is essentially inherent in all judges to be clothed ex virtuti officii with authority to administer civil oaths out of court, there is not sufficient grounds even for inferring that this judge was authorised to administerthisoatb. Now, it is not incidental to all judges to have this power, nor do they exercise this power, hut in virtue of a special authority, conferred from time to time by law. Neither does Coke, Bkickslone, Comyn or Bacon, in enumerating the powers and authorities of a judge, include that of administering civil oaths out of court, as appertaining to their office. The judges of the court of tbe King’s Bench, having criminal jurisdiction, have authority to administer oaths relative to public offences; but even this power is not possessed by the judges of the court of common pleas. And the judge who administered this oath, in this case, is of the court of common pleas, which court has no criminal jurisdiction in Massachusetts. Courts of justice have essentially, and as appertaining to their very nature, authority to administer oaths in all eases of which they have jurisdiction. Justices of the peace are supposed more peculiarly to have authority to administer oaths tn all cases; but it does not appear by this certificate that this judge was a justice of the peace, unless it can be shown that the character of a justice of the peace appertains to his office of a judge. This, however, cannot be admitted, for it does not appear by the hooks that it always, or even usually, appertains to the office of a judge to be a justice of the peace. The judges of the King’s Bench are ex officio justices of the peace, but the judges of the court of common pleas are not; and it is in the highest degree probable, that this judge, who belongs to the court oí common pleas of Massachusetts, which resembles the court of common pleas in England, is not a justice of the peace. There are many judges of courts in this slate who are not justices of the peace, and who undoubtedly have not authority to administer oaths out of court — as justices of tbe levy court — judges of the orphans court, and judges of the criminal court, as such. These judges frequently, ofiener than otherwise,. have the additional character of justice of the peace united to them by a separate commission. And to satisfy the court, in cases of attachments, that the judge had authority to administer an oath, the law requires that the certificate of some person belonging to classes therein designated, and who are in a situation to know the extent of the powers of the judges of their states, should set forth — not that he is a judge, for that is not required, and is sufficiently shown by the judge himself — but that he is authorised to administer such oaths. The certificate is to be the only evidence, all-other kinds of evidence are excluded. In this certificate nothing more can be extracted from it, than that the judge is of the official character he professes to be. It will be found, by reference to the acts of all legislatures, when they prescribe the taking of oaths, that they specially designate the persons or officers before whom they are-to be taken. This' would be a useless provision, if there were officers to whom it officially appertained to administer all oaths. In 1 Jacob’s L. D. tit. Affidavit, 61, an affidavit is defined to be “an oath in writing, sworn before some person who hath authority to administer such oath.” It does not say, sworn before a judge or justice, or other particular officer. The courts in England are authorised to appoint commissioners to take affidavits in causes depending before them; and if they are not taken before authorised commissioners, they are not valid. From these considerations, and taking into view-the peculiar wording of the second section of the act of 1795, ch. 56, and the expressions of the certificate, on which this discussion turns, it must be concluded, that there .is not sufficient grounds for inferring that the judge had -the authority-to administer the oath in this case, even if the court were at liberty to be satisfied with a mere inference.
    The secondpoint. The appellee was not entitled to recover the property.of Story in Marean’s hands, &c. This position was abandoned by the counsel for the appellee, who considered the objection a'valid one.
    
      Winder, on the same side, referred to Hepburn vs. Ell-ssey, 2 Cranch 445, where it was held, that a citizen of the district of Columbia was not a citizen of a state within the meaning of the constitution; and The Corporation of Eew Orleans vs. Winter. I Wheat. 91, where it was determined that a citizen of a territory could not sue a citizen of a State in the courts of the XI. S.
    
    
      Martin and W. Dorsey, for the Appellee.
    1. The oath taken by the appellee, as státed in the affidavit, excludes the idea of-his being a foreigner, as he is stated to be a citizen of the United States. His being stated to .be of Boston, in the county of Suffolk, shows by necessary inference that he is a citizen of Massachusetts. The cases cited arose under the constitution and laws of the U S. as to the question of jurisdiction, and are not applicable to a case like the present. To show that the affidavit was sufficient they referred to Campbell vs. Morris, 3 Harr. & M' Hen. 535. 2. It is not required by the act that the parry should swear that he produces the note, &c. upon which the debt is founded. He isonly to swear to theamount due to him,and to produce to the judge the notes, &e. who annexes it to the affidavit. 3. The objection that Gorsuch was not. a justice of the peace is obviated, because it. is certified by the clerk in the caption of his record, and also in the attachment, that he was a justice of the peace, and that is as sufficient evidence of that fact, as if he had himself stated that he was a justice of the peace, Brydon vs. Taylor, 2 Harr. & Johns. 296. Hall vs. Gittings’ Lessee, ibid 383. Lawrence et nx. Lessee vs. Heister et al. 3 Harr. & Johns, 343, 4. The act very strangely requires that the cleric should certify that the judge had authority to administer an oath, without permitting the Certificate of tiie judge to prove itself. The, clerk, to follow the words of the act, must use the word such, and that would make his certificate nonsense. It is admitted in the statement that Donnison, the judge in this case, was authorised to administer an oath; and it is to be presumed that he had authority to administer it, or he would not have done so. The clerk certifies that he was a judge, and that full faith and credit ought to be given to his acts. If he had no authority to administer an oath, the clerk would not have said that full faith and credit ought to be given to his acts.
    
      Hinder, in reply.
    The appellee is entitled to strict justice only. He proceeded under an act of assembly giving special privileges to particular persons, and he must show that he comes strictly within its provisions. 1. The appellee’s being stated to be of Boston, &c. and the affidavit being made in the county of Suffolk, in Massachusetts, does not necessarily imply that he was a citizen of Massachusetts. The expressions in the constitution of tiie U. S, upon which the cases cited for the appellants were decided, are *ot so strong as those in our act of assembly. A citizen of the district of Columbia, or of any of the territories, could not obtain an attachment under the act of 1795, ch. 56. The appellee might be of Boston, merchant, and yet not d citizen of Massachusetts. In Campbell vs. Morris, the court only acted upon the points raised, and there was no objection made to the form of the affidavit by the counsel. 2. The act says, and al the same time producing the cause of action, and it should have been asserted by the ap-pellee that the note produced is the one by which the defendant was indebted to him. Here the verity of the note is simply the assertion of the judge, and not that of the ap-pellee. 3. The appellee’s counsel seem to think this objection is fatal, unless they can bring themselves within the law, and they attempt to do so by saying the certificate of the clerk supplies the defect. The act says, the warrant must be granted by a justice of the peace, &e. in his character of justice, &c. The question is not whether Gorsuch is a justice of the peace, but whether he'did the act as such. The recital by the clerk is unfounded from any thing that came from Gorsuch. The clerk might know that he was a justice, but he could not know that he had done the act in his character as such. The recital in the record did Dot exist when the attachment issued or was returned; and the recital in the attachment is unsupported by any thing appearing, and cannot aid the defect. The clerk’s issuing the writ, and stating Gorsuch to be a justice, could not make his illegal act valid. He may have sent his resignation to the executive, of which the clerk had no knowledge, and may not have acted as a justice when he issued the warrant. If he had stated himself to be a justice, then it might be inferred he was what he stated himself to be. 4. No other evidence, but the certificate of the clerk, that the judge had authority to administer the oath, can be received. The act is imperative that it shall not be evidence unless there be a certificate of the clerk that the judge had authority to administer the oath. No admission of the parties can cure the defect. The certificate by the clerk is only that he is a judge, and that to his legal attestations due faith and credit were to be given. He does not certify that the particular act was a legal one. The legal acts which he certified were not those under our laws,' but those .under their own laws, when he acted as judge of that court of which the clerk certified he was a judge. The incident of administering an oath does not necessarily follow the office of a judge. It is specially given under particular acts of the legislature.
   The Court stated, that as it did not appear by the certificate of the clerk of the court of common pleas for Suffolk county, in the state.of Massachusetts, that the judge, before whom the affidavit to obtain the attachment was made, had authority to administer an oath, the proceedings were defective. The other points raised by the court'* sel were not decided by the court.

JUDGMENT REVERSED,  