Starke v. Marshall

3 Ala. 44 | Ala. | 1841

GOLDTHWAITE, J.

1. The motion to quash the writ of error, cannot prevail.

It may be, and doubtless is true, that in England, Christmas is considered as a dies non juridieus, but the same rule, has never, so far as we are informed, been applied in this country; and the reason is, that we have only adopted the common law, so far as it is applicable to our institutions. The day of the nativity of our Saviour, is certainly unknown, and the adoption of the 25th of December, for the purpose of celebratting certain observances in England, is derived from the ritual of the Catholic Church. The Sabbath, is the only day, which our laws and statutes recognise, as so peculiarly holy, as to make any secular business unlawful.

2. The act of 1833, Aikin’s Digest, 37, under which this attachment was sued out, does not require the plaintiff to shew, in his affidavit, how, or by what means the debt accrued; it is sufficient that the amount of the debt should be sworn to. The objection, therefore, to the affidavit, cannot avail the plaintiff in error.-

3. The attachment was irregularly directed' to any sheriff of the State, because, at the time this writ issued, such a direction was not permitted by the statute; but this would be a mere informality, not sufficient to avoid the writ, if in point of fact, it had been executed by the proper officer. This, however, was, not the case, for instead of being executed by the sheriff of Mobile, it was levied by the sheriff of Montgomery county, and this i-aises the question, whether, under the act of 1833, process of attachment, could properly run into more counties than one. The statute permits the Judge or Justice, to grant an attachment against the estate of the debtor, wherever it may be found, and certainly in many cases it would have been a very inefficient remedy, if it could only have been levied on property within the county to which it was returnable. My own opinion is, that a construction should, from the first, have been given to this act, so as to allow of levies on the property of the defendant, wherever it might be found; but a majority .of the com’t think otherwise; and we all concur that the subse-' quent act of 1837, (P, 65, sec. 12,) which amend and consolidate all the laws relating to attachments, and which authori-ses branch writs to as many counties as may be desired, must be considered as a legislative exposition of the act of. 1833. It follows from this, that under that act no attachment could be levied in a different county from that which it was returnable.

The omission of the declaration need not be examined, as this was error, according to repeated decrees of this court,

Let the judgment be reversed.