Dean v. Massey

7 Ala. 601

• Court: Supreme Court of Alabama
• Decided: January 15, 1845
• Status: Published

Opinion

ORMOND, J.

— Although the pleadings in this case, were spun out to an unnecessary length, and irrelevant matter was introduced, we think it is in substance, an issue upon the plea, and as no demurrer was interposed, no question arises upon the regularity of the pleadings.

We think it entirely clear, that an attachment sued out, and levied, returnable into the Circuit Court, is the commencement of a suit, and that it is not competent for one of the parties, by the destruction of the papers, to put an end to it. The papers should have been sent to the Court, to which the writ was returnable, and there disposed of. Any other course, might, in its consequences, lead to the grossest abuses.

We can see no error, either in the testimony admitted, or in the charge of the Court. The question to be established, was, whether the two writs of attachment, were sued out on the same cause of action. The statement of the debt in the affidavit, being the same in both, was prima facie evidence that they were sued out on the same demand, unless the contrary was shown; and certainly, there was no impropriety in permitting the justice to swear, to the best of his recollection and belief."

Let the judgment be affirmed.