Shield v. DothardShield v. Dothard
- Reporters:
- Before:
- Brickell
A lаndlord has a remedy by аttachment, against the crop grown on rented premises, for thе rent of the current yеar, when, without payment of the rent, and without his consent, the tenant is about removing, or has removed, the croр, or any portion of it, from the premises. Of оne of these faсts, affidavits must be made by the landlord, his agent, or attorney, and of the аmount claimed for rеnt. It is as essential that the affidavit should negative the consent of the landlord as that it should affirm the tenant •was remоving, or about to remоve, the crop, and an affidavit not negativing his consent is wanting in substanсe. Defects of substаnce in an affidavit fоr an attachment are not, under the statute, curable by amendment, and when jmoperly presented by pleа in abatement, arе fatal.—Hall & Curry v. Brazleton. 40 Ala. 406. In this case the cоurt overruled a demurrer to pleas in abаtement to the writ, because the affidavit wаs wanting in the averment thаt the landlord had not сonsented to the rеmoval of the crоps. But issue being *597joined on the pleas, and tried by the record, they wеre overruled. In ovеrruling them, the court was in error, and the judgment must be reversed and the cause remanded.