Porter v. Nash
Supreme Court of Alabama
Writ of error to the Circuit Court of Perry County. ASSUMPSIT. — One count is on a promissory note, averred to have been lost; this note is described as bearing date and and payable sometime during the last of the m,onlh of October, or about the first of the month of November, 1838. The count then alleges that the note was lost or mislaid “ as appears by the affidavit here produced and shewn to the court.” To this was added the common money counts.
Read the full summary
Writ of error to the Circuit Court of Perry County. ASSUMPSIT. — One count is on a promissory note, averred to have been lost; this note is described as bearing date and and payable sometime during the last of the m,onlh of October, or about the first of the month of November, 1838. The count then alleges that the note was lost or mislaid “ as appears by the affidavit here produced and shewn to the court.” To this was added the common money counts. The defendant demurred to the first count, and pleaded in bar of the others. The Circuit Court overruled the demurrer. After which the defendant…
1Opinion of the CourtGoldthwaite, J.
— 1. The first count of the declaration instead of direct and positive averments of the date of the note, and its time of payment, contains a statement of these matters in a very loose and uncertain manner. It may be possible that the plaintiff was unable to furnish any more certain description of the note, having lost it from his possession, but this does not authorize a departure from the rule of pleading, which directs that all averments shall be direct, certain, and positive. [1 Chitty on Pleas, 236 to 421.]
The statute of I828, respecting lost bonds, rules, &c. [Aikins’ Pigest, 329] does…
2Cited by4 opinions
- Evans v. KeelandSupreme Court of Alabama · 1846
- Mobile Marine Dock & Mutual Insurance v. McMillanSupreme Court of Alabama · 1855
- Ingersoll v. CampbellSupreme Court of Alabama · 1871
- Smith v. AwbreySupreme Court of Alabama · 1851