Cage & Salter v. Phillips, 38 Ala. 382

Cage & Salter v. Phillips

38 Ala. 382 | Ala. | 1862

A. J. WALKER, C. J.

The fifth special plea is free from objection, and the court erred in sustaining the plain*385tiff’s demurrer to it, The defendants, under our statute, have a right to set off damages which the law is capable of measuring accurately by a pecuniary standard, and which are the result of the fraud alleged in the fifth plea. Gibson v. Marquis, 29 Ala, 668 ; Bell v. Thompson, 34 Ala. 633. The averment of damage is sufficiently specific, under the rule of pleading deduced from the Code in the case of Roberis v. Fleming, 31 Ala. 683.

It is unnecessary to say anything of the sixth plea. If that plea bo good, every defense which could he made under it, could also be made under the fifth. It is, therefore, unimportant, and may be withdrawn.

[3.] Sixteen years was the period of limitation prescribed by the law, as it existed before the adoption of the Code, to the cause of action alleged in the complaint. — » Clay’s Digest, 327, § 81, The cause of action having accrued before the adoption of tbe Code, the law as it stood before the Code was adopted must control the question of proscription in this case. — Acts of ’53-54, page 71. The period of sixteen years had not expired when, this suit was commenced j and therefore the demurrer to the plea of the statute of limitations was properly sustained.

For the error in sustaining the demurrer to the fifth plea, the judgment of .the court below is reversed, and the can® remanded,