Smith v. Roebuck

46 So. 455, 155 Ala. 395, 1908 Ala. LEXIS 274

Opinion

TYSON, C. J.

The second count of the complaint upon which this case was tried clearly states a substantial cause of action. — Kelly v. Moore, 51 Ala. 364.

The three special pleas (numbered 3, 4, and 5), attempting to invoke the defense of justification on the part of the justice of the peace against whom the wrongs are charged in the count, are wholly defective, in failing to aver his jurisdiction of the subject-matter and of the person of the defendant. — Heard v. Harris, 68 Ala. 43; Busteed v. Parsons, 54 Ala. 401, 25 Am. ; Craig v. Burness, 32 Ala. 731; 19 Cyc. pp. 361,- 362. The fourth and fifth are also defective in another particular :• They fail to identify the act relied on as a justification with the wrongs counted on for a recovery. 8 Ency. PI. & Pr. p. 850. The demurrer to each of the pleas should have been sustained.

Reversed and remanded.

Dowdell, Anderson, and McClellan, JJ., concur.