McKenzie v. McColl
Supreme Court of Alabama
THE defendant in error, brought an action of assumpsit against the plaintiffs in the Circuit Court of Barbour, on a pro-missary note, of the following tenor.. “ $1836..66-100: Six months afterdate, we or, either of us promise to pay Alexander McColl, Judge of the County Court of Barbour county, or bearer, eighteen hundreed, thirty-six 68-100 dollars, value received. • ; February 4, 1839. Daniel McKenzie, John Cuheie.”
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THE defendant in error, brought an action of assumpsit against the plaintiffs in the Circuit Court of Barbour, on a pro-missary note, of the following tenor.. “ $1836..66-100: Six months afterdate, we or, either of us promise to pay Alexander McColl, Judge of the County Court of Barbour county, or bearer, eighteen hundreed, thirty-six 68-100 dollars, value received. • ; February 4, 1839. Daniel McKenzie, John Cuheie.” The’defendants pleaded: 1. Non Assumpsit. 2. Failure of consideration. 3. Want of consideration. • ' 4. T hat the note declared on, was given in part considera-: tion of certain…
1Opinion of the CourtCollier, C. J.
The matter set out in the fourth plea, dogs not show that-the plaintiff never can maintain an action for the non-payment of the note declared on, and is. improperly pleaded in bar. Wherever the subject matter of the de-fence is, that the plaintiff cannot maintain an action atany time, it should generally be pleaded in bar; but matter which merely .defeats the present proceeding, and does not show that the defendant is forever concluded, should, in general, be pleaded in abatement. 1 Chitty’s Plead. 434.
In the case before us, the plea, at most, shows that the plaintiff's right of action was…
2Cited by5 opinions
- Gilliland v. Dunn & Co.Supreme Court of Alabama · 1902
- Mobile County v. LinchSupreme Court of Alabama · 1916
- Drake v. Johnston & SeatsSupreme Court of Alabama · 1873
- Box v. Metropolitan Life Ins. Co.Supreme Court of Alabama · 1935
- Gray v. CookSupreme Court of Delaware · 1864