9 Port. 320 | Ala. | 1839
The record does not discover the specific grounds of the motion in the Circuit court; but the defendant’s counsel, in his argument, has insisted that the judgment is legal—
1. Because the affidavit does not conform to the statute ;
2. Because the bond is hot well executed;
3. Because its condition is defective;
4. Because the writ of attachment is not properly directed; and
Lastly. Because there is a variance between the affidavit, bond and process.
1. It is objected to the affidavit, that the plaintiff does not swear that the defendant is indebted to him in a sum certain. This objection is not (in our opinion) well taken. The plaintiff’s agent declares on oath, that the defendant “ is justly indebted to the said Abraham Alford, in the sum of thi ee thousand dollars, by a sealed note, of the tenor following” — and then sets it out in heec verba.
2. Without pretending to determine whether, where a party sues out an attachment by an agent) &c. it is necessary that the bond should be executed by the agent, &c. as the principal; we think if this be necessary, that Garner may be so regarded. The bond is thus executed:
“Abraham Alford, [seal.]
By his agent, N B. Garner. “N. B. Garner, [seal.]
“J. Cantley, [seal.]”
Neither the bond or condition style either of the obli-gors as a principal or a surety; so that we might, if it were required in order to sustain the attachment, consider Garner as the principal, and the execution by Alford, through his agency, as surplusage. So, if the execution of the bond by Garner for Alford was unauthor-ised, it would impose no liability upon the latter, but the former would be personally responsible for having exceeded his authority.
Upon a motion to quash, we are to look alone to the face of the proceedings objected to, and if these be regular, the motion will be denied. Thus: if the bond should have been executed by the plaintiff, we will presume that Garner’s authority was ample for that purpose — if it was not, the plaintiff might, by plea, have questioned the legality of his agency.
The 3d section of the act of eighteen hundred and thirty-three, requires that the bond shall be “ conditioned that the plaintiff shall prosecute his or her attachment to effect, and pay the defendant all such damages as he or she may sustain, by the wrongful or vexatious suing out of such attachment.” The 6th section prescribes the form of the affidavit, bond, and attachment, and the condition there found, is materially variant from the 3d section. Such part of it as concerns us at present, is in these words: "Now if the said-shall prosecute his suit with effect, or in case he fail therein, shall well and truly pay, and satisfy to the said-, all such costs and damages as shall be recovered and awarded against the said-, his heirs, executors or administrators, in any suit or suits, which may be hereafter brought for wrongfully suing out the said attachment, then the above obligation to be void; otherwise, to remain in full force and effect.” There is a clear discrepancy between the bond required by the 3d section, and that, the form of which is given to the 6th section ¡ — under the former, the surety would be liable for damages consequent upon the vexatious or wrongful suing out of the attachment, though the plaintiff might recover a judgment — while under the latter, he could be charged only, upon the fail
4. The attachment is directed to the sheriff, as required by the act of eighteen hundred and thirty-three; and the
5. The defendant insists, that there is such a variance between the affidavit, bond and attachment, as to have authorised the judgment of the Circuit court. The affidavit describes the plaintiff by the Christian name of Abraham — in the bond he is called both Abraham and Abram — while the attachment is sued out in the name of Abram. We think if it were necessary, that the bond and attachment might have been amended so as to conform to the affidavit, and that the variance is not such as to sustain the judgment.
This view of the case brings us to the conclusion, that the judgment of the Circuit court is erroneous, and it is therefore reversed, and the case remanded.