Badger v. Kelly

Supreme Court of Alabama

Badger v. Kelly

10 Ala. 944

CourtSupreme Court of Alabama

DecidedJanuary 15, 1847

StatusPublished

Cited by1 cases

This text of 10 Ala. 944 (Badger v. Kelly) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Badger v. Kelly, 10 Ala. 944 (Ala. 1847).

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Opinion

GOLDTH WAITE, J.

As the counsel concedes the bill [945]*945of exceptions was signed after the adjournment of the court, there is only the sufficiency of the replication to be examined. At first we inclined to think it good, but further reflection has convinced us it is no answer to the plea of non claim. If we concede that the plaintiff, when there is a general verdict, may show by proof extrinsic to the record, that it was réndered on a particular issue, it will not better his condition as the only claim presented, or relied on, was the note which the defendant successfully resisted, and which resistance could not have prevailed if, in the first action, the plaintiff had proceeded on the common counts, and was prepared with the evidence he now asserts. The party cannot now remedy by this suit, what was his misfortune or fault in that. The object of the statute of non claim is to furnish a complete and perfect bar, under which the administrator may settle with the distributees and other creditors with entire security, [Thrash v. Sumwalt, 5 Ala. Rep. 13.] This would be to some extent defeated, if an administrator, after the successful defence of a claim as presented, and afterwards asserted, could be made liable in a different form of action, or by a different mode of declaring. It may be, and doubtless is true, that a mere promissory note is not the extinguishment of the account, or other consideration, on which it is given, and therefore, when the common counts are added, a recovery may be had, although the suit fails on the note itself. To the same extent the presentation of the note would be the presentation of a claim for the consideration which induced it, so far as to allow its recovery when the note is sued on; but to carry the principle beyond this, and allow a recovery in a distinct action, after one on the note had failed, would let in the precise mischiefs the statute intended to extirpate.

Judgment affirmed.

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GOLDTH WAITE, J.

As the counsel concedes the bill [945]*945of exceptions was signed after the adjournment of the court, there is only the sufficiency of the replication to be examined. At first we inclined to think it good, but further reflection has convinced us it is no answer to the plea of non claim. If we concede that the plaintiff, when there is a general verdict, may show by proof extrinsic to the record, that it was réndered on a particular issue, it will not better his condition as the only claim presented, or relied on, was the note which the defendant successfully resisted, and which resistance could not have prevailed if, in the first action, the plaintiff had proceeded on the common counts, and was prepared with the evidence he now asserts. The party cannot now remedy by this suit, what was his misfortune or fault in that. The object of the statute of non claim is to furnish a complete and perfect bar, under which the administrator may settle with the distributees and other creditors with entire security, [Thrash v. Sumwalt, 5 Ala. Rep. 13.] This would be to some extent defeated, if an administrator, after the successful defence of a claim as presented, and afterwards asserted, could be made liable in a different form of action, or by a different mode of declaring. It may be, and doubtless is true, that a mere promissory note is not the extinguishment of the account, or other consideration, on which it is given, and therefore, when the common counts are added, a recovery may be had, although the suit fails on the note itself. To the same extent the presentation of the note would be the presentation of a claim for the consideration which induced it, so far as to allow its recovery when the note is sued on; but to carry the principle beyond this, and allow a recovery in a distinct action, after one on the note had failed, would let in the precise mischiefs the statute intended to extirpate.

Judgment affirmed.

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Bluebook (online)

10 Ala. 944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/badger-v-kelly-ala-1847.

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