Elmes v. McKenzie

Supreme Court of Alabama

Elmes v. McKenzie

5 Ala. 617

CourtSupreme Court of Alabama

DecidedJune 15, 1843

StatusPublished

Cited by4 cases

This text of 5 Ala. 617 (Elmes v. McKenzie) 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

Elmes v. McKenzie, 5 Ala. 617 (Ala. 1843).

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Opinion

ORMOND, J.

The plea is defective in concluding to the country. Pleas to the jurisdiction .should conclude with a verification. [1 Chitty’s Pleading, 450.] It is true, that in the body of the plea, there is an offer to verify it, but the conclusion of the plea is to the country, which must be regarded as the tender of an issue to the country, as it could not be tolerated that a plea in abatement, should be framed so ambiguously as to leave it in doubt, whether it concluded with a verification or to the country. Matters of form are regarded as substance in pleas in abatement, and are not embraced in our statute abolishing special demurrers. [7 Porter, 445.] So, in England, the statute in relation to th¿ assignment of causes of demurrer, has been held, not to apply to pleas in abatement. [2 M. and S. 484.]

Let. the judgment be reversed, and the cause remanded.

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ORMOND, J.

The plea is defective in concluding to the country. Pleas to the jurisdiction .should conclude with a verification. [1 Chitty’s Pleading, 450.] It is true, that in the body of the plea, there is an offer to verify it, but the conclusion of the plea is to the country, which must be regarded as the tender of an issue to the country, as it could not be tolerated that a plea in abatement, should be framed so ambiguously as to leave it in doubt, whether it concluded with a verification or to the country. Matters of form are regarded as substance in pleas in abatement, and are not embraced in our statute abolishing special demurrers. [7 Porter, 445.] So, in England, the statute in relation to th¿ assignment of causes of demurrer, has been held, not to apply to pleas in abatement. [2 M. and S. 484.]

Let. the judgment be reversed, and the cause remanded.

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Bluebook (online)

5 Ala. 617, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elmes-v-mckenzie-ala-1843.

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