Strange v. Powell

15 Ala. 452

• Court: Supreme Court of Alabama
• Decided: January 15, 1849
• Status: Published

Opinion

DARGAN, J.

This was an action of debt, brought upon an award. The defendant demurred to the declaration, and the court overruled the demurrer. The defect in the declaration is supposed to be, in not making profert of the award, and for this omission, it is contended the declaration is bad. We will not inquire whether this declaration would be defective, even if tested by the most rigid rules of pleading at common law; for it is certain, that the omission to make profert of a deed, or any other instrument declared on, could only be taken advantage of by a special demurrer. Minor’s Rep. 123; Ib. 89. By statute in this State, all demurrers are general, and defects therefore in pleading, which could at common law be reached only by a special demurrer, are cured, and cannot now be assigned as causes of demurrer.

2. The second assignment of errors, controverts the propriety of the action of the court, in striking out the second and third pleas. There were five pleas, pleaded in short, or by name. Issue was taken on three, and the plaintiff moved to strike out the second and third, which motion was granted. These pleas were, the statute of limitations of six years, and the statute of limitations of three years. It is contended by the defendant in error, that these pleas are insufficient in form, as well as in substance. The pleas are merely stated by name, and there was no obligation on the plaintiff to receive them as pleas; and there is nothing in the record from which we can infer, that he consented to consider them as pleaded in proper form. We know that the practice has prevailed in the circuit court, of pleading the usual pleas, merely by stating their name ; and when no objection is made to the plea thus pleaded, we will not permit the objection to be first raised in this court. Abercrombie v. Mosely, 9 Porter, 145, and cases there cited. But when objections were made to such pleas in the court below, and are not waived here, we cannot consider them as pleas; nor pronounce, that the court erred in striking them out, even if they would have constituted a bar, if pleaded in due form.

3. Nor is there any error in the refusal of the court, to give the charge requested by the defendant. The testimony tended to show, that the defendant, in payment of the award, after the 2d of February, 1839, but before the 3d day of July then next following, transferred to the plaintiff, bills of the Wetumpka Trading Company. These bills were in the form of bank bills, and intended to pass as money, bat the company was not chartered, nor authorized by law to exercise the privilege of banking.

The act referred to expressly declares, that if any person, after the 2d of February, 1839, and before the 3d of July thereafter, shall transfer any such bills, he shall be deemed, and taken as the indorser thereof, and shall be liable for the amount of such bill, or bills, without any demand being made of the company, or notice given to him who transferred them. Under this statute, the plaintiff had the right to bring an action of debt, to recover the amount of the bills of the defendant, if they were transferred by him to the plaintiff, after the enactment of the statute, and before it expired.

It is too well settled to be now controverted, that when a statute creates a liability to pay money, but'does not prescribe any remedy by which a recovery-shall be had, debt is the proper remedy. 7 Porter, 282; 2 McLean’s Rep. 195.

There is no error in the record, and the’judgment must be affirmed.

Chilton, J., not sitting.