M'Cutchen v. M'Cutchen
Supreme Court of Alabama
Error to the Circuit court of Jackson county. Detinue for a slave. The plaintiff brought an action of detinue in the court below, against the defendant, to recover a slave. - The defendant pleaded in abatement of the suit, that previous to the institution of the suit, she had filed her bill in chancery, claiming said slave as her own property, by virtue of a deed of gift from her husband, the plaintiff’s intestate, and praying that the plaintiff be restrained from…
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Error to the Circuit court of Jackson county. Detinue for a slave. The plaintiff brought an action of detinue in the court below, against the defendant, to recover a slave. - The defendant pleaded in abatement of the suit, that previous to the institution of the suit, she had filed her bill in chancery, claiming said slave as her own property, by virtue of a deed of gift from her husband, the plaintiff’s intestate, and praying that the plaintiff be restrained from distributing said slave as part of the estate of said intestate, and that an injunction restraining such distribution was in full…
1Opinion of the CourtOrmond, J.
— The first assignment of error rests for support on the twelfth Rule of Practice, which is, that “ No plea in abatement shall be received, if objected to, unless by the endorsement of the clerk, it appear to have been filed within the time allowed for pleading.” It does not appear from the record, that any objection was made by the plaintiff to the filing of this plea: we can not therefore presume that such was the fact. To permit the objection to be made here, when it was not made in the court below, would be productive frequently of great injustice, as the pleadings, if entitled at all,…
2Cited by2 opinions
- Foster v. NapierSupreme Court of Alabama · 1883
- Chilton v. HarbinSupreme Court of Alabama · 1844