Legal Opinion

Shields v. Byrd

Supreme Court of Alabama

Decided January 15, 1849PublishedCited by 5 opinions

Error to the County Court of Dallas. Before the Hon. A. J. Saffold, Judge. This was an action of assumpsit, on the common and money counts, by plaintiff, as trustee of Clementina M. Walke, against the defendant in error. The record recites that, “ the defendant, in short, by consent, pleads, 1st. Non assumpsit. 2d. Payment. 3d. Off-set. 4th. Tender.

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Error to the County Court of Dallas. Before the Hon. A. J. Saffold, Judge. This was an action of assumpsit, on the common and money counts, by plaintiff, as trustee of Clementina M. Walke, against the defendant in error. The record recites that, “ the defendant, in short, by consent, pleads, 1st. Non assumpsit. 2d. Payment. 3d. Off-set. 4th. Tender. The plaintiff took • issue on the first, second, and fourth pleas, and demurred to the third, and his demurrer being overruled, he replied to said plea, “ that the said Clementina M. Walke is a married woman, and that the plaintiff is suing as the…

1Opinion of the CourtChilton, J.

1. Although the judgment entry does not show that the plaintiff took the non-suit in consequence of the ruling of the court against him, in the exclusion of the copy of the trust deed, yet we think it very clear, that under the act of 1846, (see pam. acts ’45-6, p. 35,) it is not indispensable that the fact should appear in the bill of exceptions. Here, it is sufficiently made to appear by the bill of exceptions, which, after reciting the rejection of evidence material to the plaintiff’s recovery, states, that “ thereupon the plaintiff took a non-suit.” The motion to dismiss the writ of error…

2Cases cited3 opinions

  1. Jones v. ScottSupreme Court of Alabama · 1841
  2. Sledge's Adm'rs v. CloptonSupreme Court of Alabama · 1844
  3. Sturdevant v. GainsSupreme Court of Alabama · 1843

3Cited by5 opinions

  1. Laster v. BlackwellSupreme Court of Alabama · 1900
  2. Priebe v. Southern Railway Co.Supreme Court of Alabama · 1914
  3. Palmer v. BiceSupreme Court of Alabama · 1856
  4. Blackburn v. MinterSupreme Court of Alabama · 1853
  5. Downs v. MinchewSupreme Court of Alabama · 1857

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