Tommey, Gregg & Beck v. Gamble & Son , 66 Ala. 469 ( 1880 )

SOMEEYILLE, J.

Whatever may have been the rule of the common law, the practice has loDg been settled in this State, that where defects in a writ are presented by plea in abatement, the defendant must crave oyer of such writ, and set it out in his plea. And defects in the attachment, bond or affidavit may, under the provisions of the statute, be reached in the same way. — Code of 1876, § 3314; Banks v. Lewis, 4 Ala. 599. Where this practice is not followed, the plea in abatement is bad, and subject to demurrer on that ground.—Findlay v. Pruitt, 9 Port. 195; Garner v. Johnson, 22 Ala. 494. The Circuit Court erred, for these reasons, in not sustaining the plaintiffs’ demurrer to the 2d and 3d pleas of the defendants.

Where a plea in abatement is based upon some defect which is matter of record, it need not be verified by affidavit. Code (1876), § 2989. The affidavit in the attachment proceedings is unquestionably a part of the record; and the first plea, presenting its alleged want of conformity to the statute, required no oath to support it. — Drake on Attachments, § 90.

The court below erred in refusing to allow the plaintiffs to amend the defect in the affidavit. The affidavit read, “are or will be justly indebted,” $c. It was permissible to strike ouu the words “or will be,” so as to make it read “are'justly' indebted,” &o. This was a defect of form, and not of substance, and was, therefore, subject to amendment under the provisions of section 3315 of the Code (1876), which is required .to be “liberally construed, to advance the manifest intent of the law.” It was said by this court in Sims v. Jacobson, 51 Ala. 186, that “the matters of substance in an affidavit for an attachment are, the existence of a debt, its amount, and that it is justly owing from the defendant to the plaintiff; that some one of the causes for which an attachment may issue exists ; and a negative of a purpose to vex or harass the defendant. All else than these is mere matter oí form. A misstatement of the amount or character of the debt, or a misdescription of the plaintiff or defendant, would be, within the meaning of the statute, a matter of form, not of substance.” This view is fortified by the fact that the statute authorizes the issue of an atachment to enforce the collection of a debt, “whether it be due or not, at the time the attachment is taken out.” — Code, § 3262.

Reversed and remanded.