13 Ala. 722 | Ala. | 1848
The action of the court below, on the ancillary attachment, cannot be reviewed in this court by writ of error. The capias is the process, on which the judgment is rendered. The ancillary attachment is intended to secure the property, or fund, out of which this judgment is to be satisfied; and although the court may err in its action on the ancillary attachment, yet there may be no error in the judgment. The writ of error is intended to review the judgment, and is brought for the purpose of reversing it; and if the court below should improperly quash an attachment, issued as ancillary to the writ, after the judgment was rendered for the plaintiff, in which there is no error, could he bring up the cause, and ask to have it reversed ? The only mode by which the action of the court below, on an ancillary attachment, can be reviewed, is by a mandamus. This is the practice heretofore pursued by this court.
2. We are relieved from considering the question, whether the court erred in construing the interest act of Yirginia. The judgment, by its own express terms, is to bear interest at six per cent, until paid, and the recovery of interest, is as much a part of the judgment, as any part of the principal. This renders it unnecessary to examine this charge, for whether right or wrong, the plaintiff in error could not have been injured by it.
But we come to the conclusion, that the court erred in permitting the record of the letters testamentary, granted to the defendant in error by the county court of Mecklenburg, to go to the jury as evidence. The certificate under which the plaintiff below offered the record of his letters testamentary, is in the following words:
“ I, Abram Keen, first justice of the county court of Mecklenburg, in the State of Yirginia, do hereby certify, that Richard Baptiste, whose signature appears to the foregoing certificate, is, and was clerk of our county court, at the date thereof; and that it is in due form of law, and full faith and .credit should be given to his acts, as clerk. Given under my hand and seal. Abram Keen, [seal.]”
The language in this certificate is, “I, Abram Kee^ first justice,” &c. We do not think this certificate is in conformity with the requisitions of the act alluded to. The language of the act, is judge, chief justice, or presiding magistrate. We do not wish to be understood as laying down the rule, that the certificate of the judge must use the precise yvords of the statute j but when there is a departure from the statute, in the language of the certificate, the words, or language adopted, must not be equivocal, or capable of conveying any other idea than that of judge, chief justice, or presiding ma^ gistrate. Here, the term first justice, is used. Is he the presiding magistrate, or chief justice ? or is he the first that was commissioned ? or is it meant that his commission is older than either of the other justices? His commission may be the oldest, and yet it would not follow, from this, that he would be the chief justice, or the presiding magistrate, unless by statute the date of his commission would give him this position. But the bill of exceptions does not show, what the statute law of Virginia is, on this subject, or whether there is any. As the term used in the certificate may imply a different meaning than the terms chief justice, judge, or presiding magistrate, the certificate does not conform to the act of Congress, and therefore the judgment is reversed,, and the cause remanded.
