GARNER & NEVILL vs. JOHNSON, 22 Ala. 494

CHILTON, C. J. It was provided by the act of 1883, (Clay’s Dig. 54, § 1,) that “ when a writ shall issue from any of the courts of this State, commanding the sheriff, or other Officer, to take the body of any person, to answer any civil action in said court, and the sheriff shall return that the defendant is not found within his county, the plaintiff may, at his election, sue out an attachment against the personal estate of such defendant, or an alias or pluries capias, returnable in the same manner as original process,” &c.

The act of 27th January, 1845, (Pamphlet Acts ’44-45, 137) provides, “that, hereafter, when a writ shall issue from any of the courts of this State, commanding the sheriff, or other officer, to take the body of any person, to answer in any civil suit in said court, and the sheriff or other officer shall make return thereon, that the defendant is not to be found in his county, no j udicial attachment shall issue on such return, as matter of right; but before a judicial attachment shall issue, the plaintiff, his agent or attorney, or the sheriff or officer making the return, shall make affidavit before the clerk of the court to which the writ is returnable, that he has reason to believe the defendant avoided the execution of such writ; and on such affidavit being filed, the plaintiff shall be entitled to a judicial attachment, as matter of right.” A majority of the court consider that a proper constra of these acts fully authorizes the clerk to issue the iftta ment, upon the filing of the required affidavit in vao®nd during the term of the court; that the plaintiff, tf^v: shown himself entitled to the writ, by the return of inventus, and the affidavit that the defendant has avoided tk§l^ service, as he has reason to believe, may claim its issub^&s,^ matter of right, by the terms of the act; and that there is no question to be adjudicated by the court, as preliminary to its issue by the clerk.

For myself, I am inclined to hold that, being a judicial attachment, it requires the order @f the court or judge to warrant it. Such, I know, was the practice before the act of 1845 was passed; and I think that act was not intended to enlarge, but to restrain its issue, as matter of right, to those cases where the party has avoided, or furnished reason to the plaintiff for believing he has avoided, the service of the original writ. I think the judge should make the order for its issue, upon an inspection of the return upon the original writ and of the affidavit.

These authorizing it, the order goes as a matter of right. But, as my brethren differ from me, it results that the fourth plea was insufficient, and that the demurrer to it was improperly overruled. The fifth plea also is bad. It has been several times decided, that a plea in abatement for a defect in the writ, must set it out on oyer, in order that the court may judge whether the matter of objection urged as ground for abating it, is sustained by the process. See Findley v. Prewitt, 9 Porter’s R. 195; Banks v. Lewis, 4 Ala. R. 599.

This; the plea before us fails to do, and consequently should not have been sustained. The sixth plea is bad for two reasons: First, because the defendant could not put in issue the grounds on which the attachment issued, as contained in the affidavit. If the return of non est inventus upon the capias ad respondendum was duly made, and the required affidavit was filed, the statute, as the result, gives the writ, as matter of right, and fails to provide for contesting this right.

To hold that it could be contested in this way, would be, in effect, to destroy the force of the statute, by the introduction of a new provision, as a consequence of such construction. In the second place, it is bad for duplicity; and this, in a plea in abatement, is fatal upon general demurrer. 9 Ala. Rep. 499; 6 ib. 468; 11 ib. 548: 12 ib. 472. In such pleas, matters of form are regarded matter of substance. Elmes v. McKenzie, 5 Ala. Rep. 617; Hart v. Turk, 15 ib. 675. See, also, as to the first objection to it, Middlebrook v. Ames, 5 Stew. & Por. 158.

The seventh plea is liable to the first objection taken to the sixth, inasmuch as it merely denies the fact that the plaintiff had reason to believe that the defendant avoided the service, and falls within the principle settled in the case of Middlebrook v. Ames, supra. The eighth plea is more formal, as it craves oyer of the capias ad respondendum, and setting it out, avers, that it was not issued five entire days before the day on which the term to which it was returnable commenced.

The statute does not employ the term “entire days,” but requires that the writ shall be executed at least five days before the return thereof; and if the writ be sued out within five days before the beginning of the term, it may be abated on plea of the defendant. It is conceded, by the agreement of the counsel accompanying this plea, that the capias ad respondendum was issued on tbe 15tb, and the term commenced on the 20th of October. We should, however, aside from the concession, be bound judicially to know when the court sits.

Now, whatever may be the ruling of other courts, in regard to the point involved in this plea, it has been the uniform practice in this State, so far as we are advised, in computing the time which intervenes between the issue of the writ and the beginning of the term to which it is made returnable, to exclude one day and include the other. A writ issued and served on Wednesday, which is returnable to a term to commence on Monday, has been uniformly esteemed as well issued and properly returnable.

Had the statute said, it shall be issued five entire days before the first day of the term, we are not prepared to say but that the rule would be different. It seems, however, to be the general rule, that where the statute requires service for a fixed number of days, the mode of computation is to include the day of service and to exclude the other, but where a number of entire days are required, both must be excluded. 3 Hals. 303.

At all events, the practice is too well established in this State, of issuing writs on Wednesday returnable to the court which sits on the Monday following, now to be disturbed, even though we should not be inclined, were the question open, to establish such practice. See the cases on the brief of plaintiffs’ counsel sustaining it. Our conclusion is, that all the pleas were bad, and that the demurrers should have been sustained to them. Let the judgment be reversed and the cause remanded.