Lowrie v. Stewart
Supreme Court of Alabama
Writ of error to the Circuit Court of Talladega. The defendant in error declared against the plaintiffin assump-sit. 1. On a promissory note, dated the third ofNovember, 1838, for the payment of two hundred and eighty-seven dollars, twelve months after date. 2. For money had and received. 3. For goods, wares and merchandize, sold and delivered. 4. For money lent and advanced.
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Writ of error to the Circuit Court of Talladega. The defendant in error declared against the plaintiffin assump-sit. 1. On a promissory note, dated the third ofNovember, 1838, for the payment of two hundred and eighty-seven dollars, twelve months after date. 2. For money had and received. 3. For goods, wares and merchandize, sold and delivered. 4. For money lent and advanced. To each of these counts there was a demurrer, which being overruled,the defendant below pleaded — 1. Non assumpsit. 2. A setoff. 3. Want of consideration. 4. Failure of consideration. 5. Statute of frauds, alledging that…
1Opinion of the CourtCollier, C. J.
— In Winston v.The Trustees of the University, 1 Ala. Rep. 124, it was determined that in an action of as-sumpsit on the common counts, a plea of the statute of limitations ofthree years, which does not aver that the plaintiff’s cause of action is an open account, is bad on demurrer. If the plea was no answer to the declaration, the defendant has not been prejudiced by the striking it out, and cannot complain that the plaintiff did not demur.
The three counts which were demurred to, are certainly not so verbose as those furnished by most of the writers upon pleading, yet it is believed that…
2Cases cited1 opinion
- Winston v. Trustees of the University of AlabamaSupreme Court of Alabama · 1840
3Cited by2 opinions
- Spence v. MitchellSupreme Court of Alabama · 1846
- Auerbach v. PritchettSupreme Court of Alabama · 1877