Hale v. Cummings
Supreme Court of Alabama
Writ of error to the County Court of Montgomery county. ASSUMPSIT against Carpenter, -as drawer of a bill of exchange. The suit-was commenced by capias ad responden-dum, which was served; afterwards the plaintiffs sued out a writ of attachment pursuant to the statute authorising such process, and this was levied on certain real and-personal estate.
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Writ of error to the County Court of Montgomery county. ASSUMPSIT against Carpenter, -as drawer of a bill of exchange. The suit-was commenced by capias ad responden-dum, which was served; afterwards the plaintiffs sued out a writ of attachment pursuant to the statute authorising such process, and this was levied on certain real and-personal estate. The personal estate was replevied by the intestate, who gave bond and security to deliver it to.-the sheriff, to satisfy such recovery as should be had in the cause. • • Carpenter died before any judgment was had, and the defendant as his…
1Opinion of the CourtGoldthwaite, J.
The matter to be determined from this record is, whether an administrator can plead the insolvency of the estate committed to his charge, in abatement of a suit commenced by capias in the lifetime of the intestate, in which an attachment also was sued out as an auxilliary process, and levied on real and personal estate.
We state the question in this manner, to avoid complexity, for it is apparent that the only effect of the replication, is to place the fact of the levy upon the record.
The 33d section of the act of 1806, Aik. Dig. 151, § 2, provides, among other matters, as follows: And to the…
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