Morrison v. Spears

8 Ala. 93

• Court: Supreme Court of Alabama
• Decided: January 15, 1845
• Status: Published

Opinion

ORMOND, J.

The reference in the third count of the declaration, to the previous counts, for the date of the promissory note, is sufficient, although the previous counts were held insufficient on demurrer, as the allusion was, to the fact distinctly stated in the first count, of the day on which the note was made, and which, therefore, need not be repeated in the succeeding counts, further, than by reference to the allegation previously made. [Mardis’ Adm’r v. Shackelford, 6 Ala. Rep.]

The count is still, however, defective, in not alledging, either positively in the count itself, or by reference to a preceding one, when the note became due. The allegation, “ which period has long since elapsed,” does not tend to show, that the note was due when the suit was brought, as the only point of time to which the allegation can refer, is the date of the note. If, therefore, it were admitted, that an allegation that the note was due at the time the suit was brought, was sufficient, no such allegation is made here. This count was, therefore, bad on general demurrer.

The objection in regard to the variance between the time of the indorsement alledged, and that proved, need not be noticed, as the case must be remanded, and it is not probable it will again occur.

Let the judgment be reversed and the cause remanded.