Hazard v. Jordan , 12 Ala. 180 ( 1847 )

GOLDTHWAITE, J.

1. A preliminary question was ¡raised in the court below, whether it would entertain the motion to dissolve the attachment on account of the lapse of ¡time since it was issued. As a general rule, it cannot be questioned, the party should not be permitted to lie by without raising the objection when the cause for it is apparent ; but we apprehend the analogy which must govern the practice will be found in the rules which obtain in setting aside bailable process, on account of irregularities, and in pleading a variance between the declaration and the writ, when the former is not warranted by the latter. According to the course of practice in the King’s bench, the writ is general, and the plaintiif is allowed to declare for any cause of action, but if bail is required, he will be held to declare according to the affidavit, or the bail will be discharged. So with us, the plaintiff is required to indorse his cause of action on the writ, and a variance between the declaration and writ in this respect, would doubtless be good cause to set aside the declaration, [Ex parte Ryan, 9 Ala. 89,] but we apprehend the objection should be taken at as early a period as possible, and would not be allowed unless urged within the time that a plea in abatement should be pleaded for a variance between the body of the writ and the declaration. Indeed, this seems to furnish the precise rule in a case like the present. When the plaintiff declares for a cause of action for which the statute allows the process of attachment, and joins other causes, the defendant has no other remedy than to call upon the court to interpose .for his protection. But there is no necessity for this when the declaration consists of counts for causes within the statute, and other defective counts. In such a case a demurrer to the defective counts must lead to their amendment or abandonment. It is only when the counts are amended that the cause exists for the interposition of the court by rule. Here, it will be seen by referring to the former report of the cause, the first declaration contained defective counts, and the declaration was amended by filing a new count in the court below. It is very clear, in our judgment, that the defendant upon an amended declaration, would be allowed to plead its variance from the writ, no matter when the amendment was made * [Comstock v. Meek, 7 Ala. Rep. 528;] and by analogy to this, it seems to us he was entitled to the rule for the plaintiff to show cause why his attachment should not be dissolved, for the reason that his cause of action was not within the statute.

2. Coming then to the merits of the motion, we do not think ourselves called upon to say how far the decision of Weaver v. Puryear, 11 Ala. Rep. 941, would control this case if the attachment was under the general law. This process is sued by one non-resident against another, and the act which gives the remedy is greatly more limited than the general act. It provides, that when any person being a nonresident of the State, “ is indebted to any person also a nonresident, either by judgment, note, or otherwise,” the process-may be allowed. We think the construction of these terms cannot be extended beyond causes of action for which either debt or indebilalus assumpsit will lie. The cause of action disclosed alike in the count of the plaintiff’s declaration, and by his proof is one for general and unliquidated damages only.

The consequence is, the plaintiff had no cause of action to warrant the process of attachment, and there was no error in dissolving it.

Judgment affirmed.