Cleveland v. Chandler
Supreme Court of Alabama
Cleveland, A. Carson, sen and H. Brantly, as executors of David Carson, dec’d, brought, an' action of debt) in the Circuit court of Dallas county, against Chandler, founded upon a promissory note, executed by him to the plaintiffs’ testator.
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Cleveland, A. Carson, sen and H. Brantly, as executors of David Carson, dec’d, brought, an' action of debt) in the Circuit court of Dallas county, against Chandler, founded upon a promissory note, executed by him to the plaintiffs’ testator. To the declaration, the defendant filed four pleas in bar, and,-sn the fifth place, pleaded, “ that Adam Carson, sen. and liar-ris Branlly, two of the plaintiffs, had never taken upon themselves the execution of the will of the said David Carson,” which was received as a plea, in abatement. Issues were ta-]cen Up0n all but the last, to which the…
1Opinion of the Court
By JUDGE COLLIER.
The agreement of the plaintiff, to accept the fifth plea of the defendant, as a plea in abatement, is a waiver of all obligations as to matters of form. It was competent for the plaintiff to have declined noticing the plea, on the ground that it contained abatable matter, and that pleas in bar had already been pleaded. The law has prescribed the order which the defendant must observe in pleading; and if matters, posterior, in the order of time, are pleaded, those which are prior, are tacidly waived. Pleas in abatement must come in, if at all, before pleas in bar; and, if both…
2Cases cited1 opinion
- Gleason v. LillieSupreme Court of Vermont · 1825
3Cited by10 opinions
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- Brock's Administrator v. FrankSupreme Court of Alabama · 1874
- Hart v. TurkSupreme Court of Alabama · 1849
- Perkins v. LewisSupreme Court of Alabama · 1868
- Gardner v. GanttSupreme Court of Alabama · 1851
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