Calhoun v. Cozzens , 3 Ala. 21 ( 1841 )

COLLIER, C. J.

It is insisted by the plaintiff in error, that the proceedings in this cause were instituted under the ninth section of the act of 1833, “concerning attachments.” Aik. D. 40. That section gives to a non-resident creditor the benefit of an attachment against his non-resident debtor, in the same manner as if he resided within this State: “Provided, that such non-resident, shall give good and sufficient security, residing in this State, to be approved by the Judge of the County Court, where the property or effects may be, or any Judge or Clerk of the Circuit Court, for the amount, and with the like condition as required in other cases; and that in addition to the oath now required by law, such non-resident plaintiff, his agent or attorney, before obtaining any sucli attachment as is authorised by this act, shall swearthat the defendant against whom any such attachment is sued out. lias not sufficient, property within the State of the residence of said defendant, within the knowledge or belief of such nonresident plaintiff his agent or attorney, wherefrom to satisfy such debt or demand.”

The reasons it is said,, why the proceedings should have been quashed by the Circuit Court, are

1. Because the bond was not approved until sixteen days after its date and the test of the attachment.

2. Because the affidavit is not as extensive as the proviso cited requires.

Upon the motion to quash, no intendment could have been made prejudical to the plaintiff below, but every thing stated in the proceedings should be taken as true. Lowry v. Stowe, 7 Porter’s Rep. 483.

Now it does not appear, either from the affidavit, bond or writ of attachment, that the plaintiff resided without this State, but we are required to infer that such is the fact, because the affidavit goes beyond what is necessary, where the proceeding is by a resident creditor against a non-resident debtor, and because the bond is endorsed with the approval of the Judge of the County Court. It is certainly true, that in order to obtain an attachment against a non-resident debtor at the suit of a resident creditor, the affidavit need only state the indebtedness and the non-residence of the defendant, and negative any impropriety of motive in suing out the same. Nor does the bond require approval in any other manner, than by the officer who issues the attachment; yet we cannot, according to any principle heretofore recognised, intend, m the absence of anv direct or indirect allegation or recital, that the plaintiff below resided without the State. But the legal and reasonable presumption upon this record, is, that the plaintiff states more in his affidavit than was essential, and the indorsement of the Judge of the county court, was a mere act of supererrogation.

We do not deem it necessary to inquire, whether the refusal to quash an attachment, is in any instance, rcvisablo on error, or whether the defendant should not, where his objection is to the affidavit or bond, resort toa plea in abatement. Aik. Dig. 38, sec. 3 — Acts of 37, p. 62, sec. 4. In the case at bar, if the objection to the proceedings avas available, it could only have been brought to the view of the court by a pica in abatement.

We have only to add, that the judgment is affirmed.