North v. Eslava , 12 Ala. 240 ( 1847 )

ORMOND, J.

In Dumes v. McCloskey, 5 Ala. 239, we considered the effect of a statute precisely similar, in all respects to this, except that in the former act, passed in January, 1834, a levy was authorized to be made on any goods, found within the tenement, whilst in this, passed 30th January, 1840, the levy is confined to the goods of the defendant. Both these acts are local, applying only to the city of Mobile, and authorize an attachment to be levied on the goods of the tenant, found on the leased premises, for the payment of rent in arrear.

In the case previously referred to, we held that this was a proceeding in rein, and that the judgment was not general against the defendant, but operated only on the property attached. This point was not necessary to be decided in that case, as it went off upon the ground, that the suit was improperly brought against the representative^ the tenant, and further reflection has satisfied us, the view then taken of the statute was incorrect.

We do not perceive any reason why suits commenced under this statute, should differ from those brought in virtue of the general attachment law. The manifest design of ths statute was, to give the landlord a lien upon the goods of his tenant, found in the tenement, when levied upon, unless re-plevied, and requires him to substantiate his right to sell the goods attached, or to have execution upon the replevy bond, by obtaining a judgment against the tenant. It is then, in effect, merely a suit commenced by attachment, for the recovery of rent in arrear, and in this aspect, we will now consider the errors assigned.

We do not perceive any defect in the affidavit, warrant, or bond, but we may dismiss the inquiry by merely adverting to the decisions of this court, that such objections must be made in the court below, by plea in abatement, and cannot be made in this court on error. [Jones v. Pope, 6 Ala. 154, and cases there cited.]

We have seen, that this is a suit commenced by attachment,for the recovery of rent in arrear, it follows that upon return of the process, it was necessary the plaintiff should al-ledge his cause of action. This has been done in this case, by declaring upon the covenant entered into for the payment of the rent. It is objected, the party should have declared in debt, but if debt would have lain in this case, it is clear covenant could also be maintained. The agreement as set forth in the declaration, is for the payment of the sum of $324, in monthly instalments of $27. It may perhaps be well doubted, whether debt would lie, until the expiration of the year, but there can be no doubt eovenapt could be maintained. [Dean and Chapter of Windsor v. Gover, 2 Saunders, 303.]

The declaration also proceeds to alledge, that ten months, and eleven days of the rent, was due and in arrear, at the time of the commencement of the suit, amounting to the sum of $163, and that the further sum of $81 is due upoh thé covenant. It was proper, as we have seen, to declare in covenant, for any of the instalments due at the time of the commencement of the suit, but the plaintiff could not count upon a part of a month, as the rent was not due until the expiration of the month. It is equally clear, he could not demand the residue of the unexpired term of the rent, in this action, as it was not due at the commencement of the suit, and if objection had been taken to the declaration for this cause., by a demurrer, it should have been sustained. It is also available on error. Our statutes of jeofails, only cures defects of form, unless after verdict, when a material issue has has been tried. [Turner v. Brown, 9 Ala. R. 866; Kent v. Long, 8 Id. 46.] This judgment was by default, and therefore not aided by the statutes, being matter of substance, and not form merely.

Judgment reversed, and cause remanded.