Good v. Jones

56 Ala. 538 | Ala. | 1876

BRICKELL, O. J.

The statute requiring security for the costs of suit, commenced by attachment in favor of a nonresident or corporation, is satisfied, if tbe seeurityship is in writing, filed with, and forming part of the original papers of the suit. It may be an acknowledgment in proper form, on a separate paper, or it may be indorsed on either the writ, bond, or affidavit. It must be taken and approved by the officer issuing the attachment, either before, or cotemporaneous with the issue of the writ. — B. C. § 2937. The failure of the officer to enter in writing his approval of the security-ship, will not vitiate it. It is competent for him subsequently to enter such approval, if evidence in writing of the fact is desired by either party. The approval is simply an acceptance by the officer of the acknowledgment and the sureties as sufficient. When the acknowledgment is found with the files, and is shown to have been executed with his knowledge, and his attention called to it, without any objection being made by him to it, the presumption of approval is violent, if not conclusive. If there be a doubt, in such case, of the fact of approval, the plaintiff’s suit should not be dismissed, but he should be permitted to give new and sufficient security. The seeurityship given by the plaintiff was a substantial compliance with the statute, and the Circuit Court in ruling otherwise erred.

The judgment is reversed, and the cause remanded.