Parkman v. Ely

5 Ala. 346

• Court: Supreme Court of Alabama
• Decided: January 15, 1843
• Status: Published

Opinion

ORMOND, J.

No doubt whatever can be entertained that the demurrer to the evidence was properly sustained. The statute, [Aik. Dig. 283,] makes the instrument sued on evidence of the debt or duty, for which it was given, unless its execution is denied by a sworn plea.

It results necessarily from the statute above cited, that the replication to the pleaof want of consideration,thatthere was a consideration, was sufficient. The effect of this plea was to put the con sideration of the note in issue, but by no form of pleading can the burden of proof be cast on the plaintiff, unless the execution of the note is denied by a sworn plea. To hold otherwise, would be to permit the defendant, by a slight alteration in the form of a plea, to défeat the purpose of the statute. The case cited from 3 Ala. Rep. 316, merely shows that a plea averring a want of consideration, is a good plea. The question of the onus probandi did not arise in that case.

This construction of the statute has been considered correct from the decision of the case of McMahon v. Crockett, [Minor’s Rep. 362,] to the present time. To the same effect, is Boone v. Shackelford, [4 Bibb 67,] upon a statute analogous to ours.

Let the judgment be affirmed.