Spann

V.

Boyd.

there, the plaintiff filed his statement of the cause of action, JANUARY 1850 or declaration, in two counts. The first count alleged, that in consideration that the plaintiff had delivered to the defendant certain goods and chattels, of the value of $49, to be taken care of by the defendant for the plaintiff, the defendant undertook to take care of the goods for the plaintiff, and to deliver them to him whenever thereunto requested, &c.; that the plaintiff demanded the goods, and that the defendant did not deliver them, but on the contrary, that he had so negligently conducted himself respecting them, that they were wholly lost to the plaintiff. The second count was for goods sold and delivered, money had and received, laid out and expended, and an account stated in the usual form. The declaration was not entitled as of any particular term of the Court. The de fendant filed a general demurrer to the whole declaration, which the Court sustained, and at May term, 1828, gave judgment for the defendant.

BARTON & STEWART, for the plaintiff. The demurrer should have been overruled; because both counts were good. The first was on a special bailment, and express promise to re-deliver, therefore on contract. Besides, a party may waive tort and bring assumpsit. The statute a au- a Laws of Alk. thorizes an action before a justice, for specific articles. But 510. if the first count was not good, the second one clearly was. It is a copy of the mixed count to be found in Chitty's forms; and where there are several counts, and one is good, the defendant should demur to the bad ones only; if he demurs generally, the demurrer must be overruled. It should be overruled also, because there was a good cause of action in the declaration, and in appeals from justices courts, technical strictness is not required. The omission to fill the blank in the declaration as to the term of the Court, would not be error. It clearly appears from the record that the declaration was filed after the appeal came up, and before judgment rendered on it; in appeals, this is sufficient, at all events it was only a matter of special demurrer.d

Tidd's Pr.

647. 1 Saun. 286. 2 Saun.

380. 1 Wilson, 248. 4 43. 6 East. $33.3 Caines Rep. 89, 263. Henn. and Munf. 361. Stat. of 1825.

Bos. & Pul.

Laws of Ala, 189, 511. d Laws of Ala. 511.

CHAPMAN, Contra. We admit that to sustain the demurrer, we must shew defects going to the whole declaration, and not to one count merely. But there are objections going to the whole. The title of the term is not set out; this is fatal on general demurrer. Again, this case 267.

e 1 Chitt. Pl

Spann
Boyd.

V.

a 1 Chitt. Pl. 325.

JANUARY 1830, was brought from a justices Court. The statute does not give to justices jurisdiction of such a cause of action as is stated in the first count; therefore the demurrer was proper. If the plaintiff demands two things or more, and from his own shewing, there is a better writ for one of them, the whole writ shall abate. Formerly it was necessary to plead such a defence in abatement, but now, if the objection appear in the declaration, the defendant may demur. Here the objection does appear on the face of the proceedings. The declaration is also bad for a misjoinder of counts. Besides the objection, that the justice could have no jurisdiction of the subject matter of the first count, the counts are for separate and distinct demands, which could el Chitt. Pl. not, in any event, be joined; and as this appears on the record, it is demurrable.c

b2 Saun. 210. 1 Chitt. Pl. 197.

157.

By JUDGE PERRY. The practice has never required formal declarations in cases originating before justices of the peace; a mere statement of the grounds of action has always been held sufficient, under the statute regulating the manner of making issues in the County and Circuit Courts, preparatory to the trial of cases of appeal, and certiorari. Technical niceties have been avoided, and held unnecessary. The omission to state the term of the Court in the title of the declaration, was no cause of general demurrer. It is however contended in support of the demurrer, that there is a misjoinder of counts, inasmuch as the first count describes a cause of action not cognizable before a justice of the peace. The chief difficulty, therefore, arises in applying the cause of action, as stated in the first count of the plaintiff's declaration, to the act of the Legislature defining the jurisdietion of justices of the peace. The act prescribes that all debts and demands not exceeding fifty dollars, for a sum or balance due on any specialty, note, bond, cotton receipt, contract or agreement in writing, or for goods, wares and merchandise sold and delivered, or for work, or labor done, or for money lent, or for specific articles, or for any sum or balance due, either by written or verbal contract, or assumpsit, in any case not sounding in damages merely," are declared to be exclusively cognizable and determinable by a justice of the quorum, or of the peace.

66

From the provisions of the foregoing act, it seems to have been the intention of its makers to exclude from the jurisdiction of justices of the peace, all actions which are in form ex delicto; because in that form of action, damages are recovered for the tort or injury to the person, un

Spann

V.

Boyd.

page 104.

connected with contract. The inquiry, therefore is pre- JANUARY 1830. sented, whether the count in question is in form ex contractu, or ex delicto? By a reference to 2 Chitty's Pleadings, it will be found that the precedent there given in assumpsit against bailees, corresponds with the one now in question in most of its parts; consequently it has a 2 Chitt. Pl. the character of a count in assumpsit against a bailee, founded upon contract, the breach of which constituted the injury to the plaintiff, and the extent of which is to be ascertained by the justice of the peace, by fixing the value on the specific articles which the hailee failed to deliver, or which were damaged, or destroyed by his negligence. The count, however, is bad, in not specifying the articles which were delivered to the bailee, if I may so call the defendant, and which were to be re-delivered to the plaintiff; conceding therefore, that the first count is bad, and would have been so considered on general demurrer; yet the demurrer should not have been sustained, there being no misjoinder of counts, all being upon contract, and all good, except the first; for it is a well settled rule, that if there be several counts in a declaration, some of which are sufficient, and others not, the defendant should only demur to the bad counts; and if he demur to the whole declaration, the judgment must be against him."

b1 Chitt. Pl.

It is the opinion of the Court, that the judgment given 643. below ought to be reversed, and the cause remanded. This decision, however, is expressed as being that of the Court, only on the question of misjoinder, and the reversal is predicated on that point alone. The remainder of this opinion contains my own views, and those of Judge Crenshaw on the facts presented by the record.

JUDGE SAFFOLD not sitting.

Reversed and remanded.

OLIVER V. JUDGE.

In the record, there appeared a writ, and a verdict and judgment for the plaintiff, the clerk certified that at the trial, the reading of the declaration was waived, and that afterwards it could not be found; no declaration, plea nor issue appeared in the transcript; held that the judgment was

erroneous.

THIS was a writ of error from the Circuit Court of the

Oliver

V.

Judge.

JANUARY 1830. County of Butler, sued to this Court by A. Oliver, to reverse a judgment obtained against him by Mary H. Judge. In the record as certified by the clerk, there appeared a writ in case, in the name of Mary Judge, plaintiff, against Oliver, as defendant, indorsed to recover damages for the breach of a marriage promise, and for seduction. Then follows in the record a recital, that at March term, 1828, the parties came by their attorneys, and also a jury, who being duly elected, tried and sworn to try the issue joined, &c. found a verdict for the plaintiff for $541 damages, for which she had judgment. This comprises the whole record; no declaration or plea appearing. Annexed to the record, however, was a certificate by the clerk of the Court, under his hand and seal, and directed to the Judges of the Supreme Court, certifying that there was no declaration in his office, and had not been since the trial; that when the trial commenced, the plaintiff's attorney inquired of the attorney for the defendant, if he should read the declaration? the reply was, that it was not necessary; the plaintiff's counsel then laid it on the table, and proceeded with the trial; that at the conclusion of the trial, the jury asked to be furnished with the declaration, but it could not be found, and they were directed by the Court to proceed without it, which they did. He further certifies that he has made diligent search, and has never been able since to find it.

3

PARSONS & COOPER, of counsel for Oliver, the plaintiff in this Court, assigned for error, that the record contained no issue, no pleadings, no cause of action, and nothing on which to found a verdict and judgment.

GOLDTHWAITE, for the defendant in error.

By JUDGE COLLIER. The clerk, in his certificate, states the circumstances, and says that he was unable to find the declaration in the cause to furnish to the jury, and that after diligent search, he is still unable to find it. In this certificate, the clerk does not inform us whether there was an issue for the jury to try, or with certainty, whether there was a declaration.

This case does not render it necessary for us to decide whether a judgment should be reversed for the absence of a material part of the record, which was lost after judg ment. If snch a case was presented, we should hesitate

Oliver

V.

Judge.

long before we would refuse effect to the certificate of the JANUARY 1830. proper officer, giving that information.. Here, the decla ration, if there ever was one, (a fact which does not satisfactorily appear,) was lost before judgment, and could. have been supplied on application to the Court, by leave to substitute another. Again; it does not appear that there was any issue for the jury. This irregularity, independent of the absence of a declaration, would be a sufficient cause to reverse."

The judgment is therefore re- a Minor's Ala. versed, and the cause remanded.

Rep. 137.

WATKINS V. WATKINS, use of PERKINS.

A. brought suit on a note for the use of B. under the statute, C. the defen dant, offered to prove by his own oath that the note was made and given to A. for an usurious consideration, and that it was made by the advice of B. and with his knowledge, to evade the usury laws. B. denied on oath any usury, so far as he was concerned, or knowledge of the usury. It was held that this was not a sufficient denial of the usury to prevent C. from testifying.

THIS was an action tried in Bibb County Court, which had originated before a justice of the peace. Jesse Watkins, for the use of William Perkins, was plaintiff, and Peter Watkins, was defendant. The action was on a promissory note for $50, made by Peter Watkins, and payable to Jesse Watkins. The defence was usury. At the trial, the defendant offered a statement, under the statute, and proposed to prove it by his own oath, to support his plea. The statement was, that "the note sued on, and also another, amounting together to $75, was given by him to Jesse Watkins, the payee, to raise the sum of $40; which fact was known to the plaintiff, Perkins, at and before the making of the notes; and that they were made by his advice and direction, to evade the laws against usury." To this statement, the plaintiff, Perkins, filed his affidavit; he "denied that he knew that the two notes were given to Jesse Watkins, to raise the sum of $40, either before or at the time of making them," and " denied advising or di recting the making of the notes to evade the laws against usury, or any knowledge of their consideration being usurious, but that so far as he was concerned in the transac