Pippin v. Huntington. The defendant purchased with a knowledge of all the facts and circumstances. [2 Kent's Com. 478; 1 S. & P. 80; 1 Ala. R. 645.] Defendant cannot create a defence, by voluntarily extinguishing even a paramount title. (1 S. & P. 223; 4 Ala. R. 700.] Nor can he defend, by proving a want of title in the vendor. [3 P. 126; 19 Johns, 77; 1 Mass. 65] The facts of the case are, that the bond was made, and delivered to Adams, before he delivered the slaves, and Huntington must be considered as the agent of the defendant, for this purpose. The delivery of the slaves was a valuable consideration. The plea to invalidate the consideration of the bond, must be a special plea, under the statute. [Clay's Dig. 340, § 153.] The rights of Adams will be protected, if he received the note without notice of the defence. Upon the whole case, it is clear, that the defendant cannot succeed, and he is not prejudiced. [1 S. & P. 81; 8 Porter, 546; 9 Id. 403; 3 Ala. R. 599.] ORMOND, J.-If the nominal plaintiff was prosecuting this suit for his own benefit, it is manifest he could not recover. If for no other reason, because the defendant has been compelled to pay a sum greater than the amount of the note sued upon, to relieve the slaves from the lien which it was his duty to discharge. Is the case altered, because the suit is brought for the use of Adams? It seems, that at the time of the sale, the slaves were in the possession of Adams, who had a mortgage upon them, and that he delivered them up to Huntington, on receiving defendant's note. If the defendant was privy to, and assented to this arrangement, he would thereby have precluded himself from setting up this defence to the note. If he was not, he would not be bound by the act of Huntington, and in delivering the negroes to him, Adams must be understood as contracting with, and relying on him, and in that aspect, he would have no greater, or other rights, than Huntington himself. Which of these two aspects of the case was true, in point of fact, it was the province of the jury to determine. The Pippin v. Huntington. first charge moved for, was warranted by the proof set out in the record, and should have been given. If the plaintiff desired a charge, founded upon the consent of defendant, to the delivery of the slaves upon the receipt of the note, and the evidence as is now insisted, warranted such an assumption, it should have been moved for. In refusing the charge which was asked, and which the proof warranted, the court assumed the decision of the facts of the case, and refused it, according to the argument made in this court, because the defendant was privy, and assented to the delivery of the slaves, by Adams to Huntington, on condition of receiving the note. As already observed, if this were the fact, it would preclude the defendant from making this defence, but whether such was the fact or not, it was for the jury to determine, and not the court. It has been also urged, that if the court decided wrong, the defendant is not injured, because it appears that Adams has a mortgage upon the slaves. Whether that is so or not, is a matter which cannot be tried in this action. Conceding it to be so, and that he has the right to coerce from the defendant, a sum equal to, or greater than the amount of the note, this right of action against him, cannot extinguish the defence he has the right to make to this note. As to the pleadings, it is sufficient to say, that the defence was admissible under the plea of failure of consideration, which may be pleaded to a specialty, and which being pleaded informally, by consent, must be considered as having all the requisites of a special plea. Let the judgment be reversed and the cause remanded. MORGAN v. LAMAR, Ex'R. 1. It is competent to issue an ancillary attachment under the act of 1837, "when a suit shall be commenced in any Circuit or County Court," al Morgan v. Lamar, Ex'r. though the leading process shall not have been executed; and the failure to serve the writ upon the defendant, will not abate the attachment, or impair its efficiency, but the plaintiff may proceed to judgment as in other cases. Writ of Error to the Circuit Court of Barbour. On the 27th January, 1844, the defendants in error caused a writ of capias ad respondendum to be issued against the plaintiff; and on the 29th of the same month issued an ancillary attachment against his estate upon affidavit, that he was about to dispose of his property fraudulently, with intent to avoid the payment of the debt sued for. This attachment was levied by the service of the garnishment on the day on which it issued, and upon property on the 3d February thereafter. The plaintiffs filed their declaration, and a judgment by default was rendered, and damages assessed by a jury at $1,403 30, on which judgment was accordingly entered. J. BUFORD, for the plaintiff in error. J. G. SHORTER, for the defendants in error. COLLIER, C. J.-The act of 1837, to explain and amend the laws in relation to attachments, enacts, that "when a suit shall be commenced in any Circuit or County Court of this State, and the defendants, or any one or more of them, shall abscond or secrete him, her, or themselves, or shall remove out of this State, or shall be about to remove his, her, or their property out of this State, or be about to dispose of his, her or their property fraudulently, with intent to avoid the payment of the debt, or demand sued for," the plaintiff is authorized to sue out an attachment, upon making oath, and executing a bond with surety, as in other cases of original attachment, "returnable to the court in which suit had been originally commenced, as aforesaid; which attachment, when returned, shall be filed with the papers in the original suit, constitute a part thereof, and the plaintiff shall proceed to judgment, as in other cases." [Clay's Dig. 61, § 34.] To entitle the plaintiff to an ancillary attachment under this statute, where the defendant, or his property, shall be in Morgan v. Lamar, Ex'r. the condition contemplated, it is not necessary that the leading process in the cause shall have been executed. The act makes no such requisition; but it provides in totidem verbis, that "when a suit shall be commenced," then the plaintiff may sue out an attachment. It is not, then, the service of process which the attachment must necessarily succeed; but it is the commencement of the suit. This takes place whenever the process has been placed in the hands of an executive officer to be served. The consequence is, that the attachment was regularly issued, and of course, properly levied ; and the remaining question is, whether its effect has been lost by the failure to serve the writ upon the defendant. There is nothing in the statute, or in the nature of the proceeding by attachment, that leads to such a conclusion. Previous to the passage of the act, as well as since, it was allowable for the plaintiff to sue out a judicial attachment upon the return of a capias ad respondendum. But this does not furnish an adequate remedy; for if the plaintiff is compelled to await the return of process "not found," when it is certain that it will not be executed, the defendant may in the meantime have withdrawn himself, and his effects, beyond the jurisdiction of the State; and the very state of things against which it was the purpose of the act to provide, actually occur. True, the plaintiff might have dismissed his suit, and perhaps have issued an original attachment; but the dismissal would have been at his costs, and there is nothing in our legislation in respect to attachments, which seems to make such a course of procedure necessary. Instead of restricting the remedy by attachment within what the letter of our statutes prescribe, we should rather be inclined to extend it by a liberal interpretation, if necessary to carry out the purpose of the legislature. The attachment, we have seen, was regularly issued; and the failure to serve the leading process upon the defendant, does not, in our opinion, impair its effiOur conclusion is, that the judgment of the Circuit Court must be affirmed. cacy. 9 234 117 310 117 652 Battle v. The Corporation of Mobile. ORATION BATTLE v. THE CORPORATION OF MOBILE. STEWART v. THE SAME. 1. The city of Mobile, under the provisions of its charter, authorizing the levy of a tax upon real and personal estate, within the city, may lawfully assess a steamboat plying on the waters of the Alabama river, although it is registered and enrolled as a coasting vessel under the laws of the United States, if owned by citizens of the State resident in Mobile. 2. And the city has the same power if the owner of the boat is a citizen of another State, yet resident here during the business season, although the boat may be assessed, and taxes paid, in the State of which the owner is a citizen. Writ of Error to the Circuit Court of Mobile. THESE causes, in the court below, were submitted on the following statement of facts, to wit: The Mayor, Aldermen, and Common Council of the city of Mobile, pursuant to the act of 14th January, 1844 pp. 1844, 175, passed an ordinance for the collection of a city tax; the assessors of taxes were duly elected and qualified; they duly assessed the steamboat New World, the property of William Stewart, the defendant in one of the suits, as a part of his property: And also assessed the steamboat Montgomery, as a part of the property of J. & J. Battle, the defendants to the other suit, at values sufficient to realize the sum of $100, in taxes. The tax is not a specific tax on steamboats, but they are included in the statement of the personal property of the defendants respectively. Rives, Battle & Co. is a firm doing business in the city of Mobile, and the defendants, Battle, are members of that firm, and they reside in the city. Wm. Stewart is a citizen of Pittsburg, in Pennsylvania, and has his domicil there, but spent the winter and spring of 1844-5, since January, in Mobile; being interested in several steamboats that ply on the Alabama and Tombigbee rivers. The boats named are regularly licensed steamboats, under the laws of the United States, and are of one hundred tons and |