Scott v. Macy

3 Ala. 250 | Ala. | 1841

ORMOND, J.

This attachment was issued, as auxilliary to a writ, which had been sued out for the recovery of the same debt, and which the law under which it issued, required “ should be filed with the papers in the original cause, and constitute a part thereof.” In such a case, the writ of attachment is not the leading process in the suit, the parties being in Court by the writ which had previously issued. No possible injury could result from the mistake of the time when the Court was held, in which the suit was pending. However, therefore, the law might be, if the suit had been commenced by original attachment, in a case like the present, the error was a mere clerical misprision, and as such, amendable under the influence of the statute which authorizes amendments of defects of form in attachments. Aik. Dig. 42.

It is the settled law of this Court, that an attachment will not be quashed on account of a defective bond, unless the plaintiff is unwilling to execute a good bond, as is shewn by the cases cited by the plaintiff in error. There being, therefore, no sufficient reason for quashing this attachment, the judgment of the Court below is reversed, and the cause remanded for further proceedings.