Miller v. McMillan , 4 Ala. 527 ( 1842 )

COLLIER, C. J.

1. The objection taken to the affidavit and attachment, even conceding that it is now regularly made, cannot be sustained. In effect they charge that the defendants are indebted to the plaintiffs in a sum of money to be paid in futuro. This is permitted by the seventh section of the act of ■ 1833-, which expressly authorizes the issuance of an attachment, “'although the debt or demand of the plaintiff be not due.’’ [Aik. Dig. 39.] In this respect the casé is unlike Benson v. Campbell, [6 Porter’s Rep. 455 ;] there the defendant was not indebted at the 'time the process issued, and whether 'there efer would bé an indebtedness, depended upon a contingency which might never happen; but here, so far as we are informed, the indebtedness is absolute, though the day of payment has 'not arrived. ’[See also the P. and M. Bank of Mobile v. Andrews, 8 Porter’s Rep. 422.]

2. We must judicially know that the sheriff of Sumter county is named Mathias E. Gary, and knowing this, will intend that 'the ’letters “ S. C/’ which follow his official designation, hie the initials for Sumter county. This legal presumption :is fatíthorizéd both by analogy and precedent.

There is no statute -in t'his State which -prescribes the man-tier in which sheriffs shall appoint their deputies, and we cannot conceive of any valid objection to the special deputation, which is shown by the record in this case. In McGehee v. Eastis, [3 Stewart’s Rep. 307,] this'question was largely-considered, and the Court were of opinion that the sheriff was not restricted in the mode of appointment; even holding that the sheriff may appoint a general deputy by parol or without writing,‘and that such appointee may do any act of a ministerial character which his principal cotild.

The return of the levy is sufficiently specific. It states the number of the bales of cotton, with their marks, and affirms -that they aie the property of the defendants. The reasonable inference, and the legal conclusion, is, that they are the .property -of all the defendants in attachment. In Bickerstoff v. Patterson, [8 Porter's Rep. 245,] the sheriff returned that he had levied the'attachment on sundry articles of property With- ' out adding that they were the'defendant’s; so in Kirksey et al v. Bates, [1 Ala. Rep. N. S. 303,] the sheriff returned that he had levied the attachment on several negroes, (naming them,) 'and that-they were replevied by the defendant, without'désig-nating which one of them. In the first case the Court'said they would intend, the property levied on to belong to the defendant fin-the-latter that they would not-look to the'replev-y bond, but would intend from the 'return, that the slaves were the property of the defendants. These decisions are conclusive to show that the return in the case at bar is unexceptionable.

3 The judgment was not rendered by the Circuit Court until more than six months after the issuance of the attachment; in fact until after the expiration of that period from its return to that Court. This being the case, the publication of the pen-dency of the attachment, supposed to be indispensable by the counsel for the plaintiff in error, was wholly immaterial. Such was the decision of this Court in Bickerstaff v. Patterson, 8 Porter’s Rep. 245; Murray v. Cone et al, id. 250.

4. The objection to the declaration that it charges that defendant is in custody, &c. instead of stating that hi- property was attached, &c. is too formal to have been allowed on demurrer, much less can it avail on error.

The consequence is, that the judgment is affirmed.