delivered the opinion of this court.
This was a proceeding by way of attachment in Baltimore county court.
The record states the proceeding as follows :
Bo it remembered, that heretofore, to wit, on the twenty-first day of December, in the year of our Lord, one thousand eight hundred and forty-four, Thomas Hanson Belt, Esqr., one of the justices of the State of Maryland, in and for the city of Baltimore, pursuant to an act of the General Assembly of Maryland, in such case made and provided, sent to the clerk of Baltimore county court here a certain affidavit made before him, with an agreement thereto annexed.
The agreement produced to the justice of the peace, by Creenbwry B. Wilson, at the time of making the affidavit, among other stipulations, contains the following one:
“ It is further understood, Messrs. S. M. Tinsley Sf Co. are *194to. guarantee the inspection of the flour, and if the flour should not pass superfine, then the said Wilson is to furnish Messrs. S. M. Tinsley 6f Co. with the inspector’s certificate of the qualities of the flour as passed by him, and Messrs- S. M. Tinsley <§» Co. are bound to make such reduction as is customary, between the different qualities of flour in the place where the flour may be inspected.”
Upon the affidavit of Greenbury B. Wilson, the justice of the peace issued his warrant to the clerk of Baltimore county court, to issue a writ of attachment, which the clerk accordingly did. The attachment was laid, and the garnishee appeared by counsel, and pleaded non assumpsit and nulla bona, and upon these pleas, issues were joined. After the evidence had been offered to the jury, several prayers were offered to the court, for instructions to the jury, by the defendant, all of which were refused by the court, but the following one:
“The plaintiff cannot recover, because his claim is for unliquidated damages.” This instruction the county court gave, and the plaintiff excepted.
This instruction presents the only question for our decision in this case. That the term “ indebted,” in the act of 1795, is not to be construed in a technical or strict legal sense, is manifest from its association and connection with the terms used in the same section. After directing that the creditor shall make oath that the debtor is bona fide indebted, <fcc., “ and at the same time producing 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 said debtor is so indebted, the justice of the peace is authorised and required forthwith to issue his warrant to the clerk,” &c.
The claim on which the justice issued his warrant, was presented to him at the time he awarded the warrant, and the question was, whether this demand arose ex contractu, and the the contract ascertained the amount of indebtedness? or was it susceptible of ascertainment by some standard fixed by the *195contract itself, so certain as to enable the plaintiff by affidavit to aver it, or the jury, by their verdict, to ascertain and find it?
The contract was, that Tinsley Sf Co. were to guarantee the inspection of the flour which they were to deliver, and if it should not pass superfine, then said Wilson was to furnish Tinsley tj- Co. with the inspector’s certificate of the flour, as passed by him, and Tinsley Co. were to make such deduction as was customary between the different qualities of flour in the place where the flour might be inspected, and superfine flour. Wilson swore that the eighteen hundred barrels of flour did not pass superfine, and that the difference in the value of flour, according to the custom of the place where it was inspected, was fifty cents per barrel, and that the said Tinsley Sf Co. were bona fide indebted to the plaintiff in tire just and full sum of $900, over and above all discounts. The standard was the difference in the value of the flour at the place where in was inspected, between flour superfine, and flour superfine bad. This was as easily ascertained as the value of goods sold, where no price was fixed as to value. The standard was so clearly ascertained by the contract itself, as to enable the plaintiff to aver it in his affidavit.
The court erred in their instruction to the jury, and the judgment is reversed, and procedendo awarded.
judgment reversed, and
procedendo awarded.