Banks v. Lewis
Supreme Court of Alabama
ERROR to the County Court of Russell. This action was commenced in the Court below by original attachment. The defendant at the appearance term pleaded in abatement, “that said plaintiff ought not to have and maintain the said attachment against the defendant, for this, to wit: that the said plaintiff is and was, at the time of suing out the same, a resident of the State of Georgia, of which the defendant was at said time, and is also a resident, and that said plaintiff…
Read the full summary
ERROR to the County Court of Russell. This action was commenced in the Court below by original attachment. The defendant at the appearance term pleaded in abatement, “that said plaintiff ought not to have and maintain the said attachment against the defendant, for this, to wit: that the said plaintiff is and was, at the time of suing out the same, a resident of the State of Georgia, of which the defendant was at said time, and is also a resident, and that said plaintiff omitted to state in his said affidavit for suing out said attachment, that the defendant had not sufficient property in the…
1Opinion of the CourtOrmond, J.
The plea in this case cannot be sustained. The authorities cited show that a plea containing matter in abatement and concluding in bar, is bad, as a plea in abatement. The conclusion of a plea in abatement is a prayer that the writ be quashed — the denial that the plaintiff can maintain his action is an admission that the writ is properly sued out.
It was also necessary that the affidavit should have been set out on oyer, that the Court might have been able to judge whether the affidavit was defective or not. [Findley v. Pruitt, 9 Porter, 195.]
Let the judgment be reversed and the cause…
2Cases cited1 opinion
- Findlay v. PruittSupreme Court of Alabama · 1839
3Cited by3 opinions
- Bradford v. BarclaySupreme Court of Alabama · 1863
- Tommey, Gregg & Beck v. Gamble & SonSupreme Court of Alabama · 1880
- Goldsticker v. Stetson & Co.Supreme Court of Alabama · 1852