Jennings v. Cummings

9 Port. 309

• Court: Supreme Court of Alabama
• Decided: June 15, 1839
• Status: Published

Opinion

COLLIER, C. J.

1. The precise question raised by the demurrer of the plaintiff in error, was brought to the view of the court in Beal & Bennett vs. Snedicor, (Jan. term, 1839.) In that case, the defendants in the Circuit court pleaded that the plaintiff (who sued as the endorsee of a promissory note,) “ was not the owner of the note sued on, or any part thereof, at the time of the commencement of the action, but the same was then, and still is the property of Messrs. Brewster, Solomon & Co.” the payees. To this plea, the plaintiffs demurred, and the demurrer being sustained by the Circuit court, the case came here for revision. This court was of opinion, that the act of eighteen hundred and nineteen, “to regulate the proceedings in the courts of law and equity in this State,” having enacted that it shall not he necessary for the plaintiff to prove an assignment of a bond, unless denied by a plea verified by oath, made the plea bad, for the want of such a verification. The plea in that case, being similar to the one in the case before us, we are satisfied that the court rightfully sustained the demurrer.

2. The entry of the judgment, after reciting the names of the jurors, proceeds as follows: “ who being elected, tried, and sworn the truth to speak, upon the issue joined, on their oaths do say they find,” &c. The verdict and judgment is in proper form, but it is objected, that the entry does not show that the issues were submitted to the jury. True, the singular number issue is employed, when the plural would more appropriately express the truth of the case, yet we will intend that both the plea of payment and set-off were before the jury, and that the omission correctly to recite the fact, was a mere clerical mistake, not affecting the validity of the judgment. The consequence is, that the same is affirmed.