Beatty v. Holloway , 4 Ala. 178 ( 1842 )

ORMOND, J.

It is the settled rule of this Court not to notice on error the omission to dispose oí a demurrer to a plea, when the parties go to trial before a jury; as it will then be considered that the demurrer is waived. [Ledyard v. Manning, 1 Ala. Rep. 153.] The objection that there is no replication to the plea is not sustained by the record, but if true would not be available on error, where, as in this case, the parties appeared and submitted the cause to a jury.

By a statute to be found in Aikin’s Digest, 167, §43, it is declared that certain property shall be exempt from execution and retained by and for the use of every family in this State. Among the articles thus reserved from sale by execution are “two beds and furniture,” and the sheriff was clearly responsible if under the pleadings in the cause the evidence was admissible.

The plea of the defendant is not set out in the record, but according to the loose practice too prevalent, is pleaded by its title. No objection however can be taken to the plea in this Court, as taking issue upon it must be considered a waiver. The substance of the plea was that the trespass complained of was a levy made of the defendant’s goods by virtue of a writ of fieri facias. A general replication to this plea is a traverse or denial of the facts alledged in it, and relied upon as a justification. If it had been the intention of the plaintiff not to controvert the facts set up in the plea as a defence to the action, but to insist that notwithstanding the fact relied on 'was true, the defendant was liable because he had seized goods which the execution did not warrant bis taking, it should have been replied by way of confession and avoidance of the allegations of the plea, and thus tender a new issue to the defendant.

This not being done, the facts offered in evidence were properly excluded, as they had no connection whatever with the issue which the parties had submitted to the jury. [Stephens on Pleading, 57.]

Let the judgment be affirmed.