Curry & Co. v. Paine
Supreme Court of Alabama
'WILLIAM MAGEE, as administrator de bonis non, of James Goodwin, deceased, brought an action of assumpsit in the County Court of Biobile, against James Curry and Charles W. Gazzam, as partners under the style of James Curry & Co. In his declaration, Magee describes himself as administrator generally, and declares against James Curry and Audley H. Gazzam, as partners, &c. There was a general appearance and demurrer, which being overruled, the defendants pleaded non assumpsit.
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'WILLIAM MAGEE, as administrator de bonis non, of James Goodwin, deceased, brought an action of assumpsit in the County Court of Biobile, against James Curry and Charles W. Gazzam, as partners under the style of James Curry & Co. In his declaration, Magee describes himself as administrator generally, and declares against James Curry and Audley H. Gazzam, as partners, &c. There was a general appearance and demurrer, which being overruled, the defendants pleaded non assumpsit. Upon the cause being called for trial, Wm. S. Paine, as administrator de bonis non of James Goodwin, deceased, was made…
1Opinion of the CourtCollier, C. J.
1. It is insisted for the plaintiffs in error, that their demurrer should have been sustained by the County Court, because the writ is at the suit of Magee, administrator of Goodwin, and against James Curry and Charles W. Gazzam; and the declax-ation is at the suit of Magee, in his own right, and against Curry and Audley H. Gazzam.
The variance between the writ and declaration, is certainly such as is supposed; but it has been repeatedly held, that a variance between the writ and declaration, cannot be reached by general demurrer, but must be brought to the view of the Court by plea in…
2Cited by3 opinions
- Warfield v. RavesiesSupreme Court of Alabama · 1863
- Chapman v. SpenceSupreme Court of Alabama · 1853
- Wright v. SnedecorSupreme Court of Alabama · 1871