Moore v. Appleton

34 Ala. 147

• Court: Supreme Court of Alabama
• Decided: January 15, 1859
• Status: Published

Opinion

STONE, J.

This suit was commenced before the Code-went into operation ; and hence, the execution and legality of the bill of exceptions must be tested by the statute, as it is found in Clay’s Digest, p. 307, § 5. The paper found in this record, which is relied on as' a bill of exceptions, has neither a seal nor scroll; and, under our former decisions, we cannot regard anything it contains. — Floyd v. Fountain, 17 Ala. 700; Godden v. LeGrand, 28 Ala. 158.

This reduces our investigations to very narrow limits.

[2.] The 2d count 'in the amended- declaration strictly conforms to the decision of this court, pronounced when the case was before us at a previous term. — Moore v. Appleton, 26 Ala. 633. Wo there said, “ An averment that the principal had notice of the losses and damages sustained by the agent set forth in the declaration, and failed to pay the same, would be a good breach in such a case as this.” This declaration contains that averment.

[3.] The 2d plea is defective in this, that while it fails to negative notice to the defendant, its object and aim are to cast on the plaintiff the new and additional burden of proving that he himself had given notice of the recovery and payment, or had demanded payment of the money before he instituted his suit. This is a palpable attempt to depart from our former decision, and, under our rules, canuot be tolerated. — Matthews, Finley & Co. v. Sands & Co., 29 Ala. 136, and authorities cited.

[4.] The third plea is defective, and the demurrer to it was rightly sustained.

We have now disposed of all the questions which the state of the record authorizes us to consider.

Judgment of the circuit court affirmed.

R. W- WalkeR, J., having been of counsel, not sitting.