Carlisle v. Davis , 9 Ala. 858 ( 1846 )

GOLDTHWAlTE, J.

1. It is said by Mr. Chitty, that care must be taken, in framing the declaration, that no part of the cause of action shall appear to have accrued after the time to which the declaration, by its title, refers, and that if it is otherwise, it will be subject to a demurrer. [Chitty’s Plead. 289.] But so stringent a practice has never been sustained with us, and indeed, when it is considered, the statement of time, except when made as matter of description of a written contract, may always be under a scilicit, and is immaterial; there seems no sufficient reason for such a rule. It is far better that time, when immaterial, shall not be the cause of demurrer, even when improperly stated, than that a mere error in this particular should cause delay or expense to the party. The more especially as no cause of action, provable under a general count, would be allowed to be proved, originating after the commencement of the suit. Such is the decision of other courts, and the rule by them adopted, is more consonant with our general practice. [Bemus v. Faxon, 4 Mass. 263; Crouse v. Miller, 10 S. & R. 155.] The demurrer to the second count of the declaration was therefore properly ovexv* ruled.

2. If the gexxerality of the count was the matter intended to be reached by the demurrer, we think it unobjectionable oxx that score, as although brief, it contains-all that is necessary to shew the account received the assent of both parties, which we take to be the essential matter.

3. The due bill admitted iix evidence to - the jxxry, in legal effect, answers to that described in the declaration. It admits a sxxm of moxxey to be due, aixd as no time is fixedfor its payment, it becomes so immediately. The. circumstance that the .moxxey was due for corn and fodder, was immaterial to be stated. The written contract being declared on, it was admissible under the commoxx count, without further proof, unless the special count was met by the plea of non est factum, as was held in Hartwell v. Houston, January term, 1846.

4. The remaining question to be examined is the one upon the charge to the jury. In this we think there is error. It appears the defendaxxt had given evidence tending to sustain his plea of set-off, axxd for the purpose to rebut this, the plaintiff introduced a receipt given to Barney Johnson, for an account to be collected from the plaintiff, indorsed with a direction to the justice of the peace, who gave it, to stop the proceedings, and assigning the receipt to the defendant. The objection to this evidence is, there is nothing shown in the bill of exceptions to connect the defendant with the receipt, or to shew that Carlisle ever held it under the indorsement; or if it was so held, that he ever relinquished it to tne plaintiff ; nor was it shown, how this party acquired any right to it. It was improper therefore to charge the jury that the receipt in possession of the plaintiff, furnished a presumption that he had repaid the defendant the sum sought to be set.off. We remark, the exception is scarcely intelligible as it is stated, hut it would be sheer nonsense, without the construction we put on it, as referring to the set-off previously established by the defendant.

For this error the judgment must he reversed, and the cause remanded.