Cobb v. Force, Bros. & Co. , 6 Ala. 468 ( 1844 )

GOLDTHWAITE, J.

1. The pleas in this case show, that the attachment was sued out under the 9th section of the act of 1833. That extends the benefits of the general attachment law, to non-resident creditors, but provides also, that such “shall give good and sufficient security, residing within the State, to be approved of by the judge of the county court, where the property or effects may be, or by 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 such attachment as is authorised by this act, shall swear that the defendant, against whom such attachment is sued out, has not sufficient property within the State of the residence of the defendant, within the knowledge or belief of such non-resident plaintiff, his agent or attorney, wherefrom to satisfy such debt or demand.— [Clay’s Digest, 57, § 9.]

We think the first plea presents two distinct grounds of de-fence, if we consider the allegations as setting up an entire omission to give the bond required by statute, and this is the view we take of it, because no oyer is asked of the bond which appears in the record. It then sets up as a defence, two distinct facts. 1. That there is no sufficient affidavit; and 2d, that there is no bond whatever. The first of these objections, if true, is a fatal defect, but the second, conceding it to be also true, could be obviated by giving a sufficient bond. If then, an issue was taken on this plea, and a sufficient affidavit shewn, but no bond whatever, it would be difficult to say what the finding or judgment should be. The rule is, that a plea is double, when it states two or more facts,, either one of which would constitute a defence. [Chitty’s Plead. 231, 447.]

2. The second plea, however, is good, for it applies only to-the affidavit, and shows a fatal omission of a material require-' ment of the statute. It was considered as essential, that the party suing out the attachment, should state his want of belief, as well as his want of knowledge, that the defendant had sufficient property to answer the debt, within the State of his residence.— Indeed, it may well be presumed, that actual knowledge of the entire solvency and ability of a non-resident, to meet his debts, would scarcely protect him from this process, if it could be easily evaded by substituting an agent without such knowledge; if this agent was not also required to state an absence of all belief of the fact.

As the court below erred in overruling the second plea, the judgment is reversed, and the cause remanded.