Shield v. Dothard

BRICKELL, C. J.— A landlord has a remedy by attachment, against the crop grown on rented premises, for the rent of the current year, when, without payment of the rent, and without his consent, the tenant is about removing, or has removed, the crop, or any portion of it, from the premises. Of one of these facts, affidavits must be made by the landlord, his agent, or attorney, and of the amount claimed for rent. It is as essential that the affidavit should negative the consent of the landlord as that it should affirm the tenant •was removing, or about to remove, the crop, and an affidavit not negativing his consent is wanting in substance. Defects of substance in an affidavit for an attachment are not, under the statute, curable by amendment, and when jmoperly presented by plea in abatement, are fatal.—Hall & Curry v. Brazleton. 40 Ala. 406. In this case the court overruled a demurrer to pleas in abatement to the writ, because the affidavit was wanting in the averment that the landlord had not consented to the removal of the crops. But issue being [597] joined on the pleas, and tried by the record, they were overruled. In overruling them, the court was in error, and the judgment must be reversed and the cause remanded.