46 Ala. 359 | Ala. | 1871
The affidavit is clearly defective. The omission to state that th*e attachment was not sued out for the purpose of vexing or harassing the defendant, is an omission of matter of substance, and not of form merely, and therefore cannot be cured by amendment. Defects of form, only, in such an affidavit, are amendable. — Revised Code,.§ 2990; Hall & Curry v. Brazelton, 40 Ala. 406.
Under our present system of pleading, no objection can be made to the form of a plea, whether it be in bar or abatement of the action. Section 2638, Eevised Code, says a plea must consist of a succinct statement of the facts relied on in bar or abatement of the suit, and no objection can be taken thereto, if the facts are so stated that a material issue can be taken thereon.
It is very clear, this plea contains facts so stated, Ihat a material issue can be taken on them. This is all the statute requires. The manner of their statement is no good cause of demurrer. Section 2629 of said Code, says no objection can be taken for defect of form in a plea; and section 2656 declares that no demurrer in pleading can be allowed, but to matter of substance.
By- the common law, great strictness was required in pleas in abatement, and defects' of form were treated as matters of substance, and might be taken advantage of by a general demurrer. This strictness is not now necessary. Pleas in bar and in abatement, with us, stand upon the same footing, and all that is required in either, is to state
Section 2989 of said Code enacts, that attachments issued without affidavit and bond, as therein provided, may be abated on plea of the defendant, filed within the first three days of • the return term. The manifest meaning of this section is, that an attachment may be abated if issued without a sufficient affidavit or bondit does not require it to be issued without either, to justify a plea in abatement.
An affidavit or bond, defective in matter of substance, is in legal contemplation equivalent to no affidavit or bond whatever.
If the defect be of form, only, it inay be amended, whether it be in the affidavit or bond, or both; but an attachment must not be dismissed for any defect in, or want of, a bond, if the plaintiff, his agent or attorney, is willing to give or' substitute a sufficient bond. The affidavit, however, if defective in substance, is not amendable, and the attachment must be abated, on the plea of the defendant. — § 2990, Revised Code.
• The causes of demurrer, assigned to the plea in abatement in this ease, do, none of them, disclose any defect of substance. They all relate to the form and manner of the plea, and not to any matter of substance, and for that ■reason constitute no good cause of demurrer to said plea; therefore, the court below committed no error in overruling said demurrer.
The 6th cause of demurrer is not sustained by the record; the plea is not only signed, but sworn to, by the defendant.
The judgment is affirmed, at appellant’s cost.
