Parkman v. Ely
Supreme Court of Alabama
ERROR to the Tallapoosa Circuit Court. Assumpsit by the defendants in error, againt the plaintiffs in error, on a promissory note. The defendants pleaded non as-sumpsit, and a special plea, that the note was given without any consideration. The plaintiff took issue on the first plea and replied to the second “ that the note declared on was not given without any consideration.” To this replication the defendant demurred, and the court overruled the demurrer.
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ERROR to the Tallapoosa Circuit Court. Assumpsit by the defendants in error, againt the plaintiffs in error, on a promissory note. The defendants pleaded non as-sumpsit, and a special plea, that the note was given without any consideration. The plaintiff took issue on the first plea and replied to the second “ that the note declared on was not given without any consideration.” To this replication the defendant demurred, and the court overruled the demurrer. On the trial of the issue, the plaintiff offered in evidence the note sued on, and rested his case, and this being all the evidence the…
1Opinion of the CourtOrmond, J.
No doubt whatever can be entertained that the demurrer to the evidence was properly sustained. The statute, [Aik. Dig. 283,] makes the instrument sued on evidence of the debt or duty, for which it was given, unless its execution is denied by a sworn plea.
*347It results necessarily from the statute above cited, that the replication to the pleaof want of consideration,thatthere was a consideration, was sufficient. The effect of this plea was to put the con sideration of the note in issue, but by no form of pleading can the burden of proof be cast on the plaintiff, unless the execution of the note…
2Cases cited2 opinions
- Giles v. WilliamsSupreme Court of Alabama · 1842
- Boone v. ShacklefordCourt of Appeals of Kentucky · 1815
3Cited by2 opinions
- Brown v. FowlerSupreme Court of Alabama · 1901
- Cheney v. HigginbothamSupreme Court of Arkansas · 1850