delivered the opinion of this court.

To sustain the judgment of the county court, quashing the writ of attachment issued in this case, a number of the deci*59sions of the courts in Maryland have been referred to, in all of which it is apparent, that the requisitions of the acts of Assembly in relation to attachments had not been complied with, and that the judge or justice before whom the proceedings were had, possessed no power to order any writ of attachment to issue thereon. And such, it is alleged, was the condition of the justice who directed the issuing of the writ before us. The objection taken to the proceedings before the justice, is the omission of the appellants to exhibit before him the notes and drafts referred to in their account. Whether this objection be well founded or not, depends upon the true construction of that part of the first section of the act of 1795, chap. 56, which requires the creditor, at the time of making his affidavit as therein directed, to produce “ the bond or bonds, bill “ or bills, protested bill or bills of exchange, promissory note “or notes, or other instrument or instruments of writing, ac- “ count or accounts, by which the said debtor is so indebted.” We do not give to this requisition of the act of Assembly that interpretation which the argument of the appellees would impose on it, to wit, that the creditor is bound to produce before the judge or justice, all the written evidence which may be in his possession, and which might be used before a jury to establish the debt, and entitle him to a condemnation of the property attached; as for example, if the attachment, applied for, were against the endorser of a promissory note, and the creditor, the endorsee, were possessed of the written acknowledgment of the endorser, that the endorsement wras in his hand writing, that the demand for payment had been duly made, and he notified of non-payment within the time prescribed by law, it would not be necessary to produce such acknowledgment before the judge or justice awarding the attachment; the production of the endorsed promissory note would be all that would be required; and if in the case of an agreement containing dependent covenants, as if A covenants to pay B a sum of money upon B’s delivering to A, of certain specified articles, and B delivers the articles to A and takes his receipt therefor, upon an attachment against A, the receipt need not be pro*60duced; the exhibition of the agreement itself being a sufficient compliance with the requisition of the act of Assembly. So if an attachment be required on an open account, for goods sold and delivered, money had and received, paid, laid out and expended, or money lent and advanced, and the creditor had the debtor’s written orders for every item charged in the account, their production before the judge or magistrate is uncalled for by the act of Assembly. It requires not the production of the testimony, qua testimony, by which the creditor’s claim is to be established, but the production of his cause of action, the account, bill, bond, note or instrument of writing, on which a declaration would be framed, as his cause of action, being in the language of the act of Assembly, “that by which “the said debtor is so indebted.” Apply this doctrine to the case before us, and it deprives the magistrate of all power to have issued his warrant for an attachment for that part of the account which relates to the notes not produced before him; not so, however, as to the drafts. They form not the creditor’s cause of action, and could not be declared on as such. They are but testimony, by which, in connexion with other proofs, certain items in the account may be established. For all that part of the account, therefore, not founded on the notes, the proof is sufficient to have warranted the justice in awarding an attachment. Does the issuing of an attachment for a larger sum than the creditor by his cause of action has shown to be due, nullify the whole proceeding ? is the question we are called on to decide. The authorities referred to have no bearing upon this question. In all of them it was manifest, that by reason of a non-compliance with the requisitions of the act of Assembly, the judge or justice had no authority for issuing an attachment for any amount, and therefore the writs of attachment w'ere quashed, as being coram nonjudice. In the case at bar, we think the magistrate had power to have ordered an attachment; there is error for all that portion of the appellant’s claim, dependent on the notes referred to in his account. There is error then in nothing but in the amount for which it issued. By quashing the writ in such a case, *61much greater injustice would be inflicted on the creditor, than sustaining the writ would visit upon the debtor. The process is issued but to compel the debtor to appear to the suit instituted against him; and if injured or oppressed by an excessive seizure and detention of his property, his means of relief are immediate, and entirely within his own control. There is no danger therefore of any serious evil resulting from sustaining the writ of attachment in such a case. With as much justice and propriety might it be urged, that if on a trial with the garnishee, the plaintiff fails to recover the entire amount by him sworn to before the justice, he shall recover nothing, and the writ of attachment shall be quashed; or that if a bail piece be taken on the plaintiff’s oath, as to the amount of his debt, for a larger amount than shall be recovered on the trial, that an exoneretur shall be entered thereon. We are aware of no principle or analogy of the law, which requires the quashing of the writ of attachment issued in this case for the cause assigned.

JUDGMENT HE VERSED AND PROCEDENDO AWARDED.

Buchanan, C. J., and Spence, J., dissented.

delivered the following opinion:

I concur in the opinion of a majority of the court, delivered by my brother Dorsey, that where a creditor who has a claim against an absent or absconding debtor, due on bond or note, or other instrument of writing, which he seeks to enforce by the process of attachment, he must at the time of making his application for the attachment, produce before the justice, &e., to whom the application is made, the bond or note or other instrument of writing by which the debtor is indebted, and that the production of an account merely, charging such bond or note, &c., is not sufficient. I agree too, that where the claim arises upon an account, the production of such account as that by which the alleged absconding debtor is indebted, is sufficient, without any voucher or proof to warrant an attachment for the amount charged and sworn to, the other requisites of *62the law being complied with. But I cannot yield my assent to so much of his opinion as sustains this attachment. The power given by the act of 1795, chap. 56, to a justice of the peace, &c., to award attachments, is a specially delegated authority, which this court has decided in Shivers and Wilson, 5 Har. & John. Barney and Patterson, 7 Har. & John., and some subsequent cases, must be strictly pursued. That act requires that a creditor who is desirous of suing out the process of attachment against an absent or absconding debtor, shall make oath before a justice of the peace, &c., that such debtor is Iona fide indebted to him or her, in a sum to be stated in the oath, over and above all discounts, and at the same time produce the “bond or bonds, bill or bills, protested “ bill or bills of exchange, promissory note or notes, or other “ instrument or instruments of writing, account or accounts by “ which the debtor is so indebted,” upon his doing which, that is making the oath, and producing the bond or bonds, &c., account or accounts by which the debtor is so indebted, the justice, &c., is authorised to issue his warrant to clerk to issue an attachment, but not otherwise.

Now, what is meant by the words “by which the debtor is so indebted ? ” 'Why, they refer the words “ by which ” to the bond or bonds, &c., account or accounts; and the words “is so indebted,” to the oath, and mean (as it seems to me,) indebted to the amount as stated and sworn to. “By which said debtor is so indebted,” can, I think, only mean by which he is indebted to the amount stated in the oath, and if that be so, (of which I cannot doubt,) as it is only upon the making the oath, to the amount claimed to be due (which amount is required to be set out in the oath,) and at the same time producing the bond, &c., account or accounts by which the absent or absconding debtor is so indebted, that the justice, &c., is authorised to award an attachment. It would seem to follow, not by reasoning from analogy, (which is not always the safest way of coming at a correct conclusion, and need not be resorted to in this case,) but from the language and meaning of the law itself, that the justice, &c., whose power in that re*63spect is special and limited and must be strictly pursued, can have no authority to direct an attachment to be issued unless those prerequisites are complied with; that is, unless in addition to the oath, stating the indebtedness and at the same time producing the bond or bonds, &e., account or accounts, or both, as the case may be, by which the debtor is indebted in the sum sworn to, and for which the attachment is sought to be obtained; and that done, the warrant for the attachment goes to the clerk for the sum stated in the oath to be due. He cannot award an attachment without a previous oath, stating the sum in which the debtor is indebted. Now, if such oath be made, unless the vouchers by which he is so indebted shall at the same time be produced, the oath without the vouchers can give no authority; nor the vouchers without the oath. Neither can be dispensed with. The two must unite. In this case the plaintiff made oath before a justice of the peace, that the debtor was indebted to him in the sum of $11,218.25, and produced an account for that amount, made up, among other things, of charges to a large amount for notes due and unpaid. The production of that account, so far as concerns the other items charged, was sufficient, being that by which the alleged debtor was indebted for so much of the sum sworn to. But not covering the whole amount, and the act requiring the bond or bonds, note or notes, &c., account or accounts by which the debtor is indebted, in the sum, mentioned in the oath, to be produced; and the notes charged in the account, by which he is indebted to a large amount of the sum sworn to, not having been produced, that requirement of the act was not complied with as far as respects the notes charged, and without the production of the notes, by which he in part was so indebted, the justice of the peace, I think, was not justified in awarding an attachment for the whole amount of the sum sworn to, in a part of which only the debtor is indebted by the account produced. His authority only being to direct the issuing an attachment for the sum mentioned in the oath of a creditor, in the production of the voucher or vouchers, as the case may be, by which the debtor is so indebted; and there is no hardship *64in that, as it would be as easy to produce the vouchers themselves as an account charging them.

There was no authority for awarding an attachment for so much of the sum stated in the oath as was charged in the account to be due on notes that were not produced; and the attachment being for the whole sum, for a part of which the justice was not authorised to award it, it was improvidently issued; and being an entire thing, illegally directed and issued, and not warranted by the act of Assembly, it cannot in my opinion be split up, and sustained in relation to any part of the amount for which it was issued, and the court below, I think, did right in adjudging it to be quashed.

The inquiry is, was it properly issuable; was it authorised by the act of Assembly, and if not, can it now be awarded or deemed good for any purpose? I think not, stamped as it is with the want of authority in the justice to issue it.

Note by Reporters. Since the case of Baldwin vs. Neal and Ridgeway, 10 Gill & John. 274, originated, the act of 1834, chap. 79, was passed; tho first section of that act dispenses with the averment, for the want of which that cause was decided; and which averment is not contained in tho affidavit in this case, it being no longer necessary to do more than prove residence in the United States, &c., of some one of the plaintiffs at the trial, where such averment is not made in tho affidavit to procure the attachment. The 3rd sec. of the act of 1834, chap. 79, is however repealed by the act of 1842, chap. 107.