Watson v. Auerbach

STONE, J. In the case of Brown v. Coats, at the present term, we declared that Avhen an attachment issues for a cause of action Avhich can not be enforced by that process, the mode of reaching the defect is by a rule on the plaintiff to sIioav cause AAdry the attachment shall not be dissolved. Such error cannot be brought to the notice of the court in any other Avay; nor raised, after dem urrer, or plea to the merits has been interposed.—See 1 Brick. Dig. 164, §§ 143, 145, 146, 147. A motion to quash an attachment, overruled in the court beloAV, Avill not be reviewed here. — See 1 Brick. Dig. 164, §§ 152, 153. Defects in the affidavit or bond unless presented on plea in abatement, or, on motion to quash sustained, are not revisable on error.—1 Brick. Dig. 158, §§ 50, 54, 55; Reynolds v. Bell, 3 Ala. 57. [358] Section 2961, of the Revised Code, as amended, gives to the landlord the right to sue out attachment for rent, and for advances made, &o., first, “when the tenant is about to remove the crop from the premises without paying the rent and said advances; second, when he has removed it, or any portion thereof, without the consent of the landlord.” Pamph. Acts 1870-1, p. 19. Section 1860, Revised Code, provides that “ any person having a lien on the crop and stock of another for advances to assist in making the crop, shall have the same rights and remedies to enforce such liens as landlords have in this State for the collection of rents.” In enforcing the right given in section 1860, supra, it is manifest that there must be some change in the phraseology of the affidavit, which is required in sections 2961-2. Instead of the words landlord, and rent, where they occur in said sections, the words advancer, or person making the advance, and advances, must be substituted. Some other verbal changes will also be necessary, which will naturally suggest themselves. The statute is remedial, and some latitude of construction is necessary to give it effect. We must not be understood, however, as holding or intimating that we will give effect to the lien provided for in sections 1858-9, of Revised Code, beyond the terms of the enactment. Advancers, to bring themselves within the statute, must show a case which conforms in every respect to those sections.—See Davidson v. Higgins, 50 Ala. 49; McLester v. Somerville, at last term. The affidavit for attachment in the present case states that the defendant “ has removed, or is about to remove, a portion of the crop from the premises without the consent of the said Auerbach.” It will be seen that in this affidavit the ground for attachment is stated disjunctively. Stated at large, and supplying the words implied, the affidavit will read as follows : “ that the defendants have removed a portion of the crop from the premises without the consent of the said Auerbach; or, that the said defendants are about to remove a portion of the crop from the premises without the consent of the said Auerbach.” It does not affirm the existence of either one of those state of facts; but it avers that one or the other exists. The second of the states of facts ■ last above stated, is not a compliance with either of the statutory grounds for attachment. Its language is, about to remove, without paying the advances. The rule in regard to disjunctive averments in pleading is, that each alternative [359] phase of the statement must be sufficient in itself, or neither is. — See 1 Brick. Dig. 701, § 899. The defendants pleaded, in abatement of the suit, that the affidavit set forth two grounds for the attachment “ in the alternative;” copying in the plea its language. We find no defect in the plea, and it was interposed in time. The 'court sustained a demurrer to this plea. In Johnson v. Hale, 3 Stew. & Por. 331, it-.was decided by this court that an affidavit for attachment must not contain two or more grounds, stated disjunctively; and that an affidavit, so framed, when properly presented, would be adjudged insufficient to support an attachment. In Cannon v. Logan, 5 Por. 77, this principle was reasserted. There has been no departure, since that time,, from the principle then declared. Under this rule, from which we do not feel at liberty to-depart, we hold that the Circuit Court erred in sustaining-the plaintiff's demurrer to the plea in abatement. We deem it unnecessary to notice the other questions-raised, further than to say that to constitute a valid crop-lien in favor of an advancer, under section 1858 of Revised: Code, the articles advanced must be of the classes enumerated, namely, “horses, mules, oxen, or necessary provisions, farming tools and implements, or money to purchase the same.” But when money is advanced in good faith, for -the alleged purposes above named, a misapplication by the borrower, in which the lender does not concur, will not defeat the lien. The right and ’lien are given by statute, and it is not in the power of contracting parties to enlarge its provisions. Other liens may be bargained for; but the statutory lien can not be extended beyond its terms. Reversed and remanded.