McKenzie v. Gibson

73 Ala. 204

• Court: Supreme Court of Alabama
• Decided: December 15, 1882
• Status: Published

Opinion

STONE, J.

— We find no error in the récord. The complaint filed before the justice claims a penalty under section 1587 of tbe Code of 18'76. The statute provides no special remedy for the penalty therein denounced. The penal part of the demand can not be recovered in an action of trespass. Tbe suit must be on the statute, and is in its nature an action of debt. A count in trespass vi et armis can not be joined with such complaint, nor can it, on appeal, be substituted for it. It changes tbe form of the action, which is not allowable. Jean v. Sandiford, 39 Ala. 317; Crimm v. Crawford, 29 Ala. 623; Beavers v. Hardie, 59 Ala. 570; 1 Brick. Dig. 526, §§ 19, 20.

Affirmed.