Legal Opinion

Deforest v. Elkins

Supreme Court of Alabama

Decided January 15, 1841PublishedCited by 3 opinions

Writ of error to the Circuit Court oí Autauga County. Action of assumpsit, commenced in the Circuit Court of Autauga County, against Jones and Elkins, but discontinued as to the former, who was not served with process. Bail was required, and Elkins, when arrested by the sheriff of Shelby County, was bailed by one B. Davis.

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Writ of error to the Circuit Court oí Autauga County. Action of assumpsit, commenced in the Circuit Court of Autauga County, against Jones and Elkins, but discontinued as to the former, who was not served with process. Bail was required, and Elkins, when arrested by the sheriff of Shelby County, was bailed by one B. Davis. A plea in abatement was interposed at the appearance term, which purports to be pleaded by Elkins, in person, but is signed, with his name, by “Bennett Davis,” his bail, and is verified by the affidavit of the same person. This plea commences and concludes, a plea to the…

1Opinion of the Court

GOLDTHWA1TE, J.

1. My opinion is, that the bail to an action, is not, under the statute referred to, entitled to plead in abatement; but a majority of the Court incline to view the statute differently. However this may be, we all agree, that if a plea in abatement can be pleaded by bail, the plea filed by them, must state the facts, which, under the statute, authorize them to defend the suit. The plea in this case, therefore, cannot be supported as the defence by bail; but this is an immaterial question, because there is nothing on the face of the plea to lead to the conclusion that it is…

2Cited by3 opinions

  1. McCoy v. Harrell, Nichols & Co.Supreme Court of Alabama · 1866
  2. Maull v. HaysSupreme Court of Alabama · 1847
  3. Williamson v. HowellSupreme Court of Alabama · 1850

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