Reports of Cases Argued and Determined in the Supreme Court of Alabama

413

during the same term when rendered.-
Neal et al. v. Caldwell.

134

C., the attorney, not having paid A. the 3. A court may alter or correct a judgment
first mentioned bond, A. had brought suit
thereon against B: Held, that this was
not a sufficient plea of failure of conside-4.
ration.-Craig v. Blow.

7. And a plea that C. and D., to deceive and
defraud B., falsely and fraudatently re-
presented to him that C was authoused 5. The court may, in its discretion, if the

A motion to strike out a plea is addressed
to the discretion of the court, and its refu-
sal is not revisable on error.-Johnson, Ad.

v. Wren.

172

to surrender and cancel the bond due to A,
and to discharge B. from liability thereon,,
and that, in consideration B. would exe-
cute said bond to D., to secure the debt
due from C. to D., he (C) would surren-
der said bond dae A. to B., and thereby
discharge him from all liability thereon;
and that said B., giving faith to said false
and fraudulent representations, and in
consideration thereof, executed said bond
to D. is not a good special plea of fraud.
See Verdict, 1.
ib.

plea is manifestly bad, strike it out, or put
the party to his demurrer; but, unless ob-
viously deficient, the proper mode is to de-

mur.

ib.

Bond, 6.

Executors and Administrators, 2. 5.

III. REPLICATION.

7. It he omit to do so, the defandant can have
the judgment affirmed on certificate. ib.
8. The certificate, authenticating the record
is sufficient for this purpose; but he can.
not be allowed the costs of the record. ib.
9. Where an error was committed in the
court below, but the appellant has sus-
taimed no injory thereby, the judgment
will not be reversed - M'Millian v. Wal-
luce.
185

1. A party who has replied to a plea cannot
assign for error, that the court refused to
strike it out the objection is waived. - 10. Alter appearanc and plea to the declara-

6. It is only the plaintiff in error who can
file the record in this court. -Thacker v.
Myrick.
184

Johnson, Adm'r v. Wren.

172

2. Upon overraling a demurrer to a plea and

tion, no objection can be taken to any de-
fect in the writ.--Hamner v. Eddins. 192

giving leave to the plaintiff to reply, it is 11. Where a defendant dies, after judgment

1. To a plea the plaintiff replied, and issue
was joined at an after term; while the is-
sue was before the jury, but before their
retirement the court allowed the plaintiff
to withdraw hus replication, and to demur
to the plea: Held, that the court might
exercise such discretion.-Brown v. Mas-
sey.
226

See Practice, 18. 21. 27.

PRACTICE.

210

13. To an original attachment, the defendant
may plead in abatement, traversing the
grounds of complaint relied on for the is-
suance of the attachment. - Brown v. Mas-
sey
226

14. To a plea the plaintiff replied, and issue
was joined at an after term; and while
the issue was before the jury, but before
their retirement, the court allowed the
plaintiff to withdraw his replication, and
to demur to the plea: Held, that the court
might exercise such discreiton-Brown v.
Massey.
226

1. In assumpsit against an indorser, judg-
ment by default final may be rendered
without a jury.-Malone & Co. v. Hathaway. 15. Where the plaintiff fails to declare, with-

29. Where no step is made below to take ad-
vantage of any defects in the declaration,
if any there be, this court will not, under
the statute examine into them
ib.

19. In setting aside a judgment by default
any time during the term in which it is 30 An agreement by plaintiff, to accept a

rendered, on good cause shewu and per-
mitting the defendant to plead the statute
of limitations, there is no error.-Wilson v.
• Torbert.

296

plea containing alatable matter, as a plea
in abatement after pleas in bar are filed,
is a waiver of all objections as to matters
of form. Cleveland et al, Errsv. Chandler.
459

1. Where a creditor by contract extends the
time for payment to his principal debtor,
without the consent of the surety. the sure-
ty is released.- Comegys and Pershouse v.
Booth and Bell.

2. In such case it need not be shewn that the

surety hath sustained damage; injury will
be presumed.

ib.

3. Where a surety has given verbal notice
to the creditor to sue the principal, to en-
title him to a discharge, he must shew,
that by neglecting to sue, an injury has
been sustained by him. Herbert & Kyle
v. Hobbs & Fennelle, Adm'rs.

24. But the same strictness is not necessary in
cases of appeal, or certiorari from justices'
judgments; nor is it correct practice to
drive a party to his demurrer, it being the
duty of the court, in such cases, to expunge
any plea not presenting issuable matter,
and to direct proper issues.

ib.

25. Every thing compatible withthe record will
be intended to sustain the judgment below;
hence, it will be presumed that the decree
was rendered upon the final apportion-
ment of an insolvent estate, and so pursu-
ed the legal liability.

ib.

26. A refusal of the court below to permit an
amendment of a plea, after the overruling

4. Such a defence is good at law and in
Chancery, but without proof of the injury
sustained, it is not available in either
ib.

court.

of a demurrer, will not be revised by this 5. And if the surety omits to set up such

1. Though there be a special contract for the rent of land, the plaintiff may, under the statute, recover on a count for use and

4. To sustain an action against a sheriff, for a false return of a fi. fa. it is necessary to shew, that there was a judgment to authorise the issuance of a a fi. fa..-Tombeckbee Bank v. Godbold.

244

occupation, reasonable rent, not exceeding 5. A memorandum shewing the amount, par

the price fixed by the contract.--- M' Millian

v. Wallace.

See Conveyance, 1. 2.

REPLEVIN. See Lien, 1. REPLICATION.

See Pleading, III.

185

ties and date of the award of judgment, signed by the clerk, is not a sufficient judgment for that purpose.

ib.

6. In this State a sheriff may appoint a general deputy by parol or without writing, as at common law, and when so constituted, he may do any act of a ministerial nature which his principal can.-M. Gee v. Eastis.

307

3. A purchaser of land is not bound to hare the evidence of a mere equitable title recorded, either as to creditors, or subsequent purchasers.

4. Delivering of possession to the purchaser of land, is deemed an act equivalent to registration of the title deed, and -hould put every person upon the enquiry as to the title.

ib.

2. In an action of thespass to try titles, in some of the counts of the declaration, the Land was described by a wrong number, and the verdict was general: Held, that the misdescription was cured by the indorsement on the writ. - Hamner v. Ed. dins. 192

3. It is sufficient, in such action, to describe the land sued for, by designating the nomber of the tract, according to the surveys of the United States.

TROVER.

ib.

1. A. undertook to carry flour for B. to a cer. tain place, and having deposited it on the way by mistake, part of the flour was ta. ken from there by C.-B. refusing to receive part only. C. received the remainder, and paid A. for the whole. This a mounts to a conversion by A. for which B. can maintain trover against him.-Bullard v. Young.

See Limitation of actions, 2.

USURY.

1. The statute of 1819, which provides that the borrower may establish a defence of usary by hisownoa.b, in certain cases, does not extend to contracts made out of this stare, by persons residing in other States. Wilson v. Walker.

211

2. Does the statute operate, where the original parties to the contract are dead, equally as if living-Quere? ib.

VARIANCE.

1. A variance as to the plaintiff between the warrant or summons of the justice, and the statement of the cause of action in the appellate court, apparent of record, by oyer or otherwise, is fatal on demurrer. - Moffett and Singleton v. Wooldridge

See Scieri facias, 1. Declaration, 1.

322

VENDOR AND PURCHASER. 1. M. purchased a lot of land, and gave his note for the purchase money; the vendors executed a certificate of the sale, by which

• 2. Where a vendor of an estate has made
fraudulent representations of title, the ven-
dee is entitled, in equity, to a rescission of
the contract. - Harris et al v. Carter's Ads
et al.
233

3. But where the purchaser had notice of the
title of the vendor, and the vendor com-
pletes his title before the vendee becomes
entitled to a conveyance, he cannot object
that the vendor had no title at the time of
the sale.
ib.

4. A purchaser of an estate, under circum-
stances sufficient to put him on the enqui-
ry, is considered as affected with notice of
an incumbrance.

ib.

517

the plaintiff is rendered, is it error-Quere?
Jones' Ex'ors v. Wilkinson.

2. In an action of trespass to try titles, in
some of the counts of the declaration, the
land was described by a wrong number,
and the verdict was general: Held, that
the misdescription was cured by the in-
dorsement on the writ.--Hamner v. Eddins.
192

3 A general veulict sustaining the canse of
action laid in the decoration, is sufficient,
although it does not specify the land recov
ered.
ib.

See Trespass to try Titles, 1.

1. The appellee having prevented the writ
of error from being properly prosecuted
his motion for affirmance on certificate was
denied. Mitchell v. Russell.

2. But aftera plea of the general issue, no ob.
jection, reaching the venire facias, can be
be made therefore, the want of one is not

error.

VENUE.

ib. 2. And the appellant was permitted to dis-
miss his writ of error, so as to prosecute an-
other.
ib.

1. Upon change of venue, the court is bound
to presume all things regular before the
change as the existence of a good caption
to the indictment; and it devolves upon the
prisoner to shew any fatal irregularity; so
it is presumable that the record has been
duly transmitted and delivered. State v.
Williams.
454

See Venire Facias, 1.

VERDICT.

1. Where there are special pleas and no re
plication or issue joined, and a verdict for

3. After appearance the appellee cannot
claim a dismissal of the writ of error, for
want of a citation.-Naylor v. Philips. 210
4. The writ of error named the defendant
individually, the record below de cribed
him as administrator-there being but one
case: Held, that the error was not fatal.-
Green v. Foley.

See Payment, 1.
Bond. 1.
Practice, 11.

Executors and Administrators, 4.

239

« Předchozí Pokračovat »

Knihy

Reports of Cases Argued and Determined in the Supreme Court of Alabama, Svazek 3