Bell v. Allen

76 Ala. 450

• Court: Supreme Court of Alabama
• Decided: December 15, 1884
• Status: Published

Opinion

STONE, C. J.

— If the question had been raised by the plea in abatement, it is questionable if the affidavit for attachment sufficiently avers that demand of payment had been made, before action brought. — Cotile of 1876, § 3472, snbd. 1. Demand should have been averred specially, and not in the form of recital. This defect, however, is not pointed out in any of the specifications of the plea in abatement, and therefore the objection is not raised.

It is very true that, to maintain attachment on the claim asserted in this suit, the relation of landlord and tenant must be shown to have existed when the alleged advance was made. Fitzsimmons v. Howard, 69 Ala. 590; Cockburn v. Watkins, at present term. .No particular charm, however, attaches to the words landlord cvnd tenant. It is sufficient if that relation is shown to exist. The affidavit in this case expressly avers that Bell rented lands from Allen for the year 1881, and that Bell worked and cultivated said lands during that year. This is the equivalent of an averment, that Allen was landlord, and Bell his tenant.

The fourth and fifth specifications in the plea in abatement point out no defect in the affidavit, and were therefore frivolous. The second and third specifications are disproved by the affidavit, and hence offer no reason for its abatement. A demurrer would have been sustained to them, and the appellant has not been injured by their rejection. The first specification'is also worthless; for it is immaterial whether the relation of landlord and tenant existed when the attachment was sued out, in February, 1883. The demurrer to it was rightly sustained.

None of the grounds for the abatement of the affidavit were well.taken, and the judgment of the Circuit Court must be affirmed.