Hogan v. Alston , 9 Ala. 627 ( 1846 )

COLLIER, C. J.

In respect to the rule for an attachment, the propriety of its discharge is not a question that can be revised on error. It did not enter into, or in any manner influence the judgment of the County Court. Whether testimony is admissible, or a witness competent, are questions which regularly arise in the progress of a trial, and a decision either one way or the other, often determines the judgment of the court, consequently an error in such cases most usually furnishes a ground for the reversal of the judgment. But a rule for an attachment against a party, or a witness, is a proceeding altogther collateral to the cause; and if it be not a matter within the discretion of the primary court, the error, if any, must in general be corrected by a mandamus, or other appropriate remedy; instead of a direct proceeding which impugns the judgment in the cause.

The motion to set aside the judgment by default addressed itself to the discretion of the Circuit Court, under the circumstances of the case' — all which it was entirely proper to take into consideration. This being the case, we cannot undertake to revise the refusal, and determine whether it was the result of a wise exercise of discretion. Upon a previous trial of this cause, had subsequent to' the judgment by default, there was a verdict and judgment for the plaintiff, which was reversed by this court on error. That reversal, it is true, did not extend so far as to vacate the judgment by default. Yet, as the cause was in fieri, it was entirely comptent for the County Court, upon its being remanded, to set aside that judgment, and to permit the plaintiff to exhibit his interroga-’ tories anew. See 6 Ala. Rep. 174.

The remaining question is, whether the plaintiff’ should have been allowed to prove charges in his account for services rendered subsequent to the promise alledged in his declaration. In personal actions, it is said, the declaration must in general state a feme when every material or traversiblefact happened, and when a venue is necessary, time must also be mentioned. The precise timé, however, is not material, even in criminal cases, unless it constitute a material part of the-contract, &c. declared upon, or where the date &c. of a written contract or record, is averred. “ In assumpsit upon a parol contract, the day upon which it is made being alledged only for form, the plaintiff is at liberty to prove a contract, express or implied, at any other time.” Chitty’s Plead. 3d Am. ed. 257-8; 1 Stephens N. P. 369; 2 Saund. R. 5, N. 3, 295, N. 2, 13 Johns. Rep. 253; 5 Pick. Rep. 189; 16 Id. 359; 2 Ala. Rep. 373.] But to tolerate this discrepancy between the allegation and proof, it has been said that the pleader should lay the time under a videlicit. In thus quoting from distinguished elementary writers, in Pharr & Beck v. Bachelor, 3 Ala. Rep. 237, we did not intend to be understood as declaring such to be the law, but even conceding that the rule was thus qualified, the pleadings in that case relieved it from the restriction. But we think liberalized as is our system of pleading, but little influence should be accorded to a scilicet. It is said by Mr. Chitty, where the consideration, or contract, or other matter alledged is material and traversable, the stating it under a scilicet will not avoid the consequence of a variance, and it will be considered as a sufficiently positive statement; and on the other hand, it has been decided that the omission of a scilicet will not render an immaterial averment, material to be proved as stated, even in a criminal proceeding, unless some positive allegation be adopted, as the words “and no more.” [1 Chitty’s Plead. 308. True dicta are to be found in some cases which accord to a videlicit the effect of relieving the pleader from the necessity of proving the time of a verbal promise as laid. See Step. Plead. 292; cases cited in 1 Chitty’s Pl. 3d Am. ed. 308, note y. But the learned annotator upon the latter work, presumes upon the authority of the case in 6 T. Rep. 265, and upon the principle on which other decisions are founded, and from the doctrine of venue in transitory actions, and from the circumstance of time and place being in general not necessary to be proved as stated, even in an indictment, that the omission of a scilicet will not render it mate-vial to prove precisely as stated, matter which is immaterial. See also 2 Saund. Rep. 291, n.; 5 East’s Rep. 252. Without considering this branch of the question further, we are satisfied that the omission of the videlicet in stating the time when the defendant’s indebtedness accrued, cannot prevent the plaintiff from proving that he rendered services, or sold medicines to the defendant at any time, down to the issuing of the writ. From this view it results that the evidence should not have been excluded from the jury. The judgment of the County Court is reversed, and the cause remanded.