Spann v. Boyd

2 Stew. 480

• Court: Supreme Court of Alabama
• Decided: January 15, 1830
• Status: Published

Opinion

By JUDGE PERRY.

The practice has never required formal declarations in cases originating before justices of the peace; a mere statement of the grounds of action has always been held sufficient, under the statute regulating the manner of making issues'in the County and Circuit Courts, preparatory to the trial of cases of appeal, and certiorari. Technical niceties have been avoided, and held unnecessary. The omission to state the term of the Court in the title of the declaration, was no cause of general demurrer. It is however contended in support of the demurrer, that there is a misjoinder of counts, inasmuch as the first count describes a cause of action not cognizable before a justice of the peace. The chief difficulty, therefore, arises in applying the cause of action, as stated in the first count of the plaintiff’s declaration, to the act of the Legislature defining the jurisdiction of justices of the peace. The act prescribes “ that all debts and demands not exceeding fifty dollars, for a sum or balance due on any specialty, note, bond, cotton receipt, contract or agreement in writing, or for goods, wares and merchandise sold and delivered, or for work, or labor done, or for money lent, or for specific articles, or for any sum or balance due, either by written or verbal contract, or assumpsit, in any case not sounding in damages merely,” are declared to be exclusively cognizable and determinable by a justice of the quorum, or of the peace.

From the provisions of the foregoing act, it seems to have been the intention of its makers to exclude from the jurisdiction of justices of the peace, all actions which are inform ex delicto; because in that lormof action, dama.ges are recovered for the tort or injury to the person, unconnected with contract. The inquiry, therefore is sented, whether the count in question is in form ex' contractu, or ex delicto? By a reference to 2 Chitty’s Pleadings,

a it will be found that the precedent there given in assumpsit against bailees, corresponds with the one now in question in most of its parts; consequently it has the character of a count in assumpsit against a bailee, founded upon contract, the breach of which constituted the injury to the plaintiff, and the extent of which is to be ascertained by the justice of the peace, by fixing the value on the specific articles which the hailee failed to deliver, or which were damaged, or destroyed by his negligence. The count, however, is bad, in not specifying the articles which were delivered to the bailee, if 1 may so call the defendant, and which- were to be re-deliveréd to the plaintiff; conceding therefore, that the first count is bad, and would have been so considered on general demurrer; yet the demurrer should not have been sustained, there being no misjoinder of counts, all being upon contract, and all good, except the first; for it is a well settled rule, that if there be several counts in a declaration, some of which are sufficient, and others not, the defendant should only demur to the bad counts; and if he demur to the whole declaration, the judgment must be against him.b

It is the opinion of the Court, that the judgment given below ought to be reversed, and the cause remanded. This decision, however, is expressed as being that of the Court, only on the question of misjoinder, and the reversal is predicated on that point alone. The remainder of this opinion contains my own views, and those of Judge Crenshaw on the facts presented by the record.

Reversed and remanded;

Judge Saepoed not sitting.

2 Chitt. Pl. page 104.

1 Chitt. Pl. 643.