Fleming, Linn & Co. v. Burge , 6 Ala. 373 ( 1844 )

COLLIER, C. J.

1. It is not allowable to object on error, that the bond executed by the plaintifFin attachment is defective. If the defendant thinks proper to make such an objection in the primary court, it will be there entertained, yet the suit will not be dismissed, unless the plaintiff declines- executing a sufficient bond. [Lowry v. Stowe, 7 Porter’s Rep. 483; Alford v. Johnson, 9 Porter’s Rep. 320; Scott v. Macy, et al. 3 Ala. Rep. 250.] The rule of law upon this point cannot be otherwise, although the record does not show that the defendant had actual notice of the pendency of the suit previous to judgment. If the defectiveness of the bond could be presented to this court for the first time, and the judgment for that cause reversed, the defendant would not only be subjected to delay, but would be burtheüed with costs, which might have been avoided if the defendant had appeared in the circuit court; and when, too, the plaintiff most probably was pursuing the appropriate remedy for the recovery of a just demand. The injustice which would result from tolerating such a course of procedure, is quite sufficient to show that the first point made cannot be supported.

2. The attachment law of this State does not require the plaintiff to make oath that the defendant is indebted to him by bill, bond, note, &c., but only that he shall “swear to the amount of the sum due.” [Clay’s Dig. 54, § 3.] The declaration, of course, will disclose the cause of action, and the defendant may understand from it, what he has to defend against. In every thing essential, it is believed the affidavit conforms to the statute.

3. In respect to the failure to make publication, or otherwise to give notice of the pendency of the suit, it has been repeatedly adjudged, that this was not necessary where a judgment was not rendered against the defendant until more than six months after the attachment issued. [Bickerstaff v. Patterson, 8 Porter’s Rep. 245; Murray v. Cone, et al. id. 250; Miller, et al. v. McMillan, et al. 4 Ala. Rep. 527.] In the present case, the suit was commenced at least eight months previous to the rendition of the judgment.

4. The writing declared on, is, in 'legal effect, a promissory» note. It acknowledges that there is due the plaintiff by the de- -I fendants a sum certain, and then sets out the consideration of the indebtedness to be the keeping of stage horses in the defendant’s possession. The recital of a consideration cannot change the character of the paper so as to make it less obligatory and con-, elusive than it would be without it.

5. The return of the sheriff upon the attachment is, that he had levied it on four horses, (describing their colors,) as the property of the defendants. This is dearly sufficient, and would have been unobjectionable, if it had omitted to state that the property levied on belonged to the defendants. [Bickerstaff v. Patterson, 8 Porter’s Rep. 245; Kirksey, et al. v. Bates, 1 Ala. Rep. N. S. 303; Miller, et al. v. McMillan, et al., 4 Ala. Rep. 527.]

This view of the case is decisive, and the consequence is, that the judgment of the circuit court is affirmed.