Goldsticker v. Stetson & Co.
Supreme Court of Alabama
Error to the Circuit Court of Mobile. Tried before the Hon. L. GibboNS. Stetson & Co. sued out a writ of attachment against Gold-sticker for $557tW, as stated in the writ. The defendant below filed his plea in abatement, setting out, without craving oyer, the affidavit, the bond, and attachment.
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Error to the Circuit Court of Mobile. Tried before the Hon. L. GibboNS. Stetson & Co. sued out a writ of attachment against Gold-sticker for $557tW, as stated in the writ. The defendant below filed his plea in abatement, setting out, without craving oyer, the affidavit, the bond, and attachment. The affidavit thus set out, states the amount of the debt to be $257XW, and the bond is for $515XW- The plea concludes, “ Wherefore he says that the said writ was by the said plaintiffs wrongfully and unlawfully issued, without a proper bond and affidavit, as is required by the statute in such cases…
1Opinion of the CourtLIGrON, J.
— The case of Banks v. Lewis, 4 Ala. 599, is so analogous to the present, that it must control its destiny. *406There, as here, the plea in abatement was not drawn with that technical nicety which the courts require in dilatory pleas.
The plea here contains matter which, if available at all, is only -so in abatement, and it concludes rather in bar, than in abatement; and for this reason, it is bad on demurrer. 4 Ala. 599; 2 Por. 249.
The variance of which the defendant complains, could only be brought to the knowledge of the court by setting out the affidavit and bond on oyer. Here, although they…
2Cases cited1 opinion
- Banks v. LewisSupreme Court of Alabama · 1843