Legal Opinion

Douglass v. Branch Bank at Mobile

Supreme Court of Alabama

Decided June 15, 1851PublishedCited by 12 opinions

EuRait. ;to tbe Circuit Court of Mobile. Tried before '¿Hon. John Bragg. This was an action of covenant on a lease of real estate be-,' longing to the Bank, to recover the rent thereby reserved. Judgment by default was taken against the defendants. The appellants contend — 1. That the declaration is insufficient to support the judgment.

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EuRait. ;to tbe Circuit Court of Mobile. Tried before '¿Hon. John Bragg. This was an action of covenant on a lease of real estate be-,' longing to the Bank, to recover the rent thereby reserved. Judgment by default was taken against the defendants. The appellants contend — 1. That the declaration is insufficient to support the judgment. It contains no averment oí performance by the plaintiff; no averment of the delivery of possession of the demised premisos to defendants, nor of their entry, nor enjoyment of tho uso of the property. The lease ivas prospective, and was to commence after the…

1Opinion of the CourtDargan, C. J.

The first objection to the declaration is. that it does not aver that the defendants entered upon or took possession of the land. The precedents, it is true, all contain -this averment; but I have found no case that holds such an averment indispensably necessary, except in the case of a tenancy at *661.■will. In actions on leases for years, the declaration is good without the averment that the defendant entered upon or took possession of the land. The reason of this distinction is, that in the latter case, the rent is due by the contract, but in the former it is due by the occupation. In eases of…

2Cases cited2 opinions

  1. New-York African Society for Mutual Relief v. VarickNew York Supreme Court · 1816
  2. Culpeper Agricultural & Manufacturing Society v. DiggesSupreme Court of Virginia · 1828

3Cited by12 opinions

  1. Ex parte BurnettSupreme Court of Alabama · 1857
  2. Chambers v. FalknerSupreme Court of Alabama · 1880
  3. Brown v. CairnsSupreme Court of Iowa · 1898
  4. Northwestern Distilling Co. v. BrantIllinois Supreme Court · 1873
  5. Precious Blood Society v. ElsytheTennessee Supreme Court · 1899

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