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37. Attachment against a non-resident, the affidavit should state that the defendant actually "resides out of the state, so that the ordinary process of the law cannot be served upon him."

Wilson v. Outlaw, A. R. 196. 38. Attachment returnable to circuit or county courts, it is not necessary to set forth in affidavit that the sum sworn to is due after deducting all discounts or off-sets. Harriss & Farrow v. Clapp, A. R. 328. 39. Affidavit that a party is about to remove out of the county of his residence, so that the ordinary process of the law cannot be served upon him, is not sufficient. Wallis v. Murphy, 2 S. 15.

40. Affidavit made by non-resident plaintiff against the goods and effects of non-resident defendant, stating that the plaintiff resided in the State of New York; that defendant was indebted in a certain sum (describing the demand;) that the demand was not yet due, that the defendant was not within the State of Alabama, so that ordinary process could be served upon him, being also a resident of New York; that defendant had not, within affiants knowledge any property in the State of his residence sufficient to discharge the debt; and that the process was not prayed with the purpose of vexing or harrassing the defendant, or for other improper motives-held a sufficient compliance with the statute of the State.

Pearsoll & Stanton v. Middlebrook, 2 S. & P. 406. 41. The affidavit should show what part of the debt sued on is not due, and when it would fall due. Stowe v. Sewall, 3 S. & P. 67. 42. It must confine itself to one district ground, and if it state several in the disjunctive, the process will be quashed, and such defect will not be cured by the liberal construction given to the statute of 1828.

Johnson v. Hale, 3 S. & P. 331. 43. But it is not irregular that the words "absconds or secretes himself” are used, as they form one distinct ground for the issuance of an attachment. Cannon v. Logan, 5 P. 77. 44. An objection that an affidavit has not been verified and subscribed, or that the justice before whom it purports to have been made, was not such in fact, must be presented by a plea in abatement.

Lowry v. Stowe, 7 P. 483.

V. Of Errors and Irregularities, and who may take Advantage of them.

45. On scire facias v. Garnishee-plea questioning the regularity of proceedings will be struck out as frivolous.

Stebbins v. Fitch, 1 S. 180.

46. When an attachment has issued upon an insufficient affidavit, the proceedings are not void, but voidable; and a garnishee who has bona fide paid a debt due to defendant in such attachment, will be protected from a second payment. Parmer v. Ballard, 3 S. 326. Tubb v. Madding, A. R. 129.

47. When a garnishee is summoned pursuant to law, and it appears from the endorsement on the process, that the summons was served by a deputy specially authorized by the Sheriff: the counsel of debtor not being of counsel for the garnishee, cannot have the summons dismissed upon the ground of any defect in the authority, which does not appear on the face of the papers, the garnishee not having appeared or pleaded.

Walker v. Taylor, 1 S. & P. 298. 48. The attachment laws are not to be construed rigidly, and any slight or

formal defects or irregularities will be amended.

Pearsoll & Stanton v. Middlebrook, 2 S. & P. 406.

49. Defendant in attachment cannot by plea in abatement contest the truth of the facts charged as the ground of the attachment, when the affidavit and other proceedings on their face appear regular and sufficient.

Middlebrook v. Ames, 5 S. & P. 158.

50. Garnishee cannot take advantage of an irregularity in the proceedings between the parties. Smith v. Chapman & Brothers, 6 P. 365. 51. If attachment is wrongfully sued out, an action will lie, though no motive be averred or proved:-[see statutes 1807, 1814, ]-but there must be an averment of the termination of the attachment suit.

Wilson v. Outlaw, A. R. 367.

Rea v. Lewis, A. R. 382.

VI. Of the Bond to Replevy, and who may Replevy.

52. Bond to replevy goods taken in attachment is properly made payable to the sheriff, and such bond is assignable to plaintiff, and may be sued on by him as assignee. Adkins et al. v. Allen, 1 S. 130.

53. Such bond assimilates in its nature to a bail bond, and the officer who takes it should be the obligee therein-and it must be assigned by endorsement to plaintiff in attachment, as in cases of bail bonds, before such plaintiff can maintain an action thereon in his own name.

Sarton & Rogers v. Weir & Co. 3 S. & P. 421. 54. Goods taken in attachment for sumss exceeding the jurisdiction of justices of the peace, are replevyable only by defendant in attachment, his agent, attorney, or factor; and if a stranger replevies and gives bond, which is assigned by sheriff to plaintiff in execution, it furnishes no legal cause of Cummings v. Gray, 4 S. & P. 397.

action.

55. Bond authorized by statute must be payable to the sheriff, and not to the plaintiff in attachment. Sewall v. Franklin, et al. 2 P. 493.

56. But when goods are attached as the property of A. at the suit of B., and they are delivered by sheriff to C. and D., who did not appear to be the agents, attorneys, or factors of defendant, and the sheriff took their bond payable to B. conditioned for the return of the goods, or for the payment of such judgment as might be rendered in the attachment cause-no recovery can be had on it, either as a statutory or common law obligation. Ibid.

57. In a suit on replevy bond, it is a good plea for the sureties thereto that the sheriff was notified to retain the property in his custody by virtue of the proceedings under which it was attached, and that he delivered possession thereof to a stranger who eloigned it from the State.

McRae & Augustine v. McLean, 3 P. 139.

See Appearance; Executors and Administrators; Evidence.

ATTACHMENT JUDICIAL.

1. In proceedings by judicial attachment the record should show that defendant was an inhabitant of the State when the original writ was issued.

Wyatt v. Campbell, A. R. 390. Į

Evans v. Saltmarsh 1 S. 43.

ATTORNEY, SOLICITOR AND COUNSEL.

1. An attorney may suffer judgment by confession without exhibiting any warrant-if he appear in the cause. Hill v. Lambert, et. al. A. R. 91. 2. Nor is it necessary that the warrant of attorney should appear upon the record where a corporation is sueing according to the course of the common law. Guines v. Tombecbee Bank, A. R. 50. 3. The bringing of the suit is sufficient evidence that it was authorised by plaintiff. Davis v. Dickson, 2 S. 370.

4. The sickness of counsel or his inability to attend court may, under some circumstances, entitle a party injured thereby, to relief in equity; but if there are counsel in attendance who are unprepared, a motion for a continuance, or a new trial at law, is the proper remedy.

Mc Broom v. Sommerville, et al. 2 S. 515.

5. An attorney is a special agent; he has no authority to receive any thing but money in payment of a debt of his client; and if he apply the the claim of his client to the payment of his own debt, the client is not bound thereby. Gullett v. Lewis, 3 S. 23. 6. It is not competent for a court of law, on motion, to order sheriff to retain, out of money collected, the charges of plaintiff's attorney for commissions, or compensation for extra services.

Long v. Lewis, 1 S. & P. 229. 7. It is not necessary for attorney to prove his services or his employment if he can show a recognition of them by his client. Ibid. 8. An attorney who has obtained a judgment has no authority to take a bond in satisfaction thereof. Kirk v. Glover, 5 S & P. 340.

9. And where an attorney takes such bond and afterwards transfers it for his own use-in trover against the assignee by the client, evidence is admissible to show a ratification of the taking of the bond by client after the transfer of the bond, and whether the transfer was ratified, is a question for the jury. lbid.

10. An attorney cannot transfer, in payment of his private debt, a note of his client, so as to bind him either in law or in equity.

Craig v. Ely, ex'tr, 5.S. & P. 354. 11. Nor is he authorized to sue in his own name on such a note payable to a particular person or bearer, even with the consent of his client.

Bryant v. Owen, 1 P. 201. 12. Nor can an attorney pay off a note of his clients to the maker thereof, in discharge of a debt due by attorney to the maker; and if such payment is made, the maker is not exonerated thereby.

Cost v. Jennett & Smith, 1 P. 212.

13. An attorney who has obliterated an endorsement on a bond belonging to a client on which a bond suit is pending, and who states upon oath that he has no knowledge of the contents of the endorsement but that which he has received as attorney in the cause, is not bound to testify as to said contents. Crawford v. M'Cissack, 1 P. 433.

14. An attorney is liable only for gross negligence, which is a question of fact to be tried by a jury; and an averment that he had negligently commenced a suit, and improperly dismissed it, contrary to his duty, &c., held sufficient to put defendant on his plea. Evans v. Watrous, 2 P. 205. 15. An agreement between counsel and client, made after the employment in which the original contract is varied, and greater compensation secured therein, is invalid, and cannot be enforced.

Lecatt v. Sallee, 3 P. 115.

16. The statute, 1836, requiring attorneys to take the oath against duelling is unconstitutional. In the matter of J. L. Dorsey, 7 P. 293. 17. Whether an attorney could recover for his services in a suit when he had made an illegal contract.-Quere?

Holloway v. Lowe, 7 P. 488. 18. The employment of an attorney is a personal trust, which cannot be delegated to another, but with the consent of plaintiff. But if an unauthorized delegation is afterwards recognized by the party entrusted with a full knowledge of the facts, it will be binding on him; or if information be seasonably given to the person interested, of such unauthorized delegation, and he does not dissent from it, he will be held to have acquiesced : But where such information is not given until three years had elapsed, and then only on application of the person interested, although no dissent was expressed, yet no ratification could be presumed. Hitchcock v. McGehee, 7 P. 556.

Champerty; Costs.

AWARD AND ARBITRATION.

I. THE SUBMISSION AND THE EFFECT THEREOF; OF THE EVIDENCE OF

SUBMISSION AND OF THE JUDGMENT.

II. WHEN AND HOW AWARD MAY BE RELIEVED AGAINST.

I. The submission and the effect thereof; Of the evidence of submission, and the judgment.

1. An agreement to perform an award, is upon the same footing as all other agreements, and when violated, must be proceeded upon by regular action. Davis v. McConnell. 3 S. 492.

2. A party agreeing to submit his case to arbitration, does not loose his remedy at law, unless at the time there is an arbitration pending or an award has been clearly made. A contract absolutely to waive one's right to go to law, is void as against public policy. An award may be pleaded in bar though not performed. Stone v. Dennis, 3 P. 231. McAlpin v. May 1 S. 520.

3. A and B having bound themselves under seal to abide the award of certain arbitrators, with a covenant that the balance found to be due, was to be discharged in debts due to the party found to be the debtor-this will not support an action of indebitatus assumpsit by attachment.

Horton v. Ronald, 2 P. 79. 4. The Supreme Court will not look into a transcript of cases appended to a writ of error, (judgment on award,) it not appearing that the particular cases were referred to the award of arbitrators.

Lamar, et ux. v. Nicholson, 7 P. 158. 5. An award, good at common law, may, it seems, be made the basis of an action by a party injured, against the one who declines a compliance.

Ibid.

6. A written submission is not to be presumed to be in the custody of one of the parties,—and having been delivered to one of the arbitrators, his evi

dence, and not the affidavit of the party, is the best to prove that it has been lost or mislaid. Prior v. McNairy, 1 S. 150. 7. Before proving an agreement made by a party during an arbitration, the submission must be proved. Ibid. 8. To sustain a judgment on an award, it is not necessary that the record should show the consent to the submission, or the continuances, or the notices of time and place-nor is a declaration necessary.

Mendenhall v. Smith, A. R. 280. 9. Awards being much favored, the court will intend every thing warranted by the record to sustain a judgment rendered thereon; and an award will be held sufficient to sustain a judgment, although no declaration was filed. Tankersly v. Richardson, 2 S. 130.

10. And where it is agreed that the award shall be entered as the judgment of the court; yet judgment upon motion cannot be rendered in a summary manner. Lamar, et. ux. v. Lamar, et. al. 7 P. 158. 11. An award, where submission was pursuant to statute, is a warrant for the judgment of the court, as much so as a verdict, and must be followed strictly by the judgment, both as regards the amount and the parties. So judgment cannot be rendered against the wife of one of the parties to a submission, who was not subjected by the award either separately or jointly, though she may have been a party to the cases docquetted, and so intended, probably to be included in the submission.

Lamar, et. ex. v. Nicholson, 7 P. 158.

II. When and how Award may be Relieved against.

12. Award will not be set aside because the arbitrators state, as the ground of it, matter which does not constitute a legal cause of action.

Goodwin v. Yarbrough, 1 S. 152. 13. Nor will a party be relieved as to a claim forgotten to be presented to the arbitrators after a general submission of all claims and a final award. McJimsey v. Traverse, 1 S. 244. 14. Chancery will not lend its aid to disturb an award, when the party making the application has paid the amount awarded against him, and acquiesced therein for a period of five or six years.

M'Rae v. Buck, 2 S. & P. 155. 15. After a submission the parties cannot impugn the decision for extrinsic causes, unless it be shown that the arbitrators have been guilty of corruption, partiality, or gross misbehavior; and it is not sufficient to authorize a review to show an error of judgment, or an unwise determination.

Bumpass, et. al. v. Webb, 4 P. 65. 16. Improper conduct of arbitrators may be shown by direct testimony, or by such a state of facts as lead the mind to the conclusion that an award has been influenced by improper motives. Ibid.

17. If an award discover on its face a palpable mistake of law or fact, operating greatly to the prejudice of either party, it may be impeached; but it is incompetent to shew by evidence a mere mistake of law or fact.

Ibid.

18. Award allotting lands—it seems, that if the disproportion in value is so great as to strike the sense at once as a matter of injustice, Chancery will in such cases relieve. Ibid.

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