Hanks v. Hinson, 4 Port. 509

Hanks v. Hinson

4 Port. 509 | Ala. | 1837

GOLTHWAITE, J.

— The assignment of errors, brings before the Court, the inquiry as to the sufficiency of the declaration or statement of the cause of action, in a case, commenced before á justice of the peace, and tried, on appeal, before the Circuit Court of Wilcox county.

*512It is said, and so is that the fact, that no venue is laid in the declaration; but that is perhaps, wholly unnecessary in summary proceedings of this character, in which the pleadings are supposed to be framed under the direction of the Court trying the cause.

It is also said that no sufficient consideration is set forth,to support the promise to pay; but on examination, this does not seem supported by the record, which alleges the defendant to have had the use and occupation of a house, at his special instance and request, for which he promised to pay plaintiffs the sum of twenty-eight dollars. It is not usual to test the pleadings in cases originating before justices of the peace, by the rules which obtain in other cases. It is' sufficient, if the statement of the plaintiffs’ cause of action, shews in general terms, a debt due, or a contract to be performed, and a non-payment of the debt, or breach of the contract.

This Court has decided, that it will not scrutinize proceedings similar to these, by the technical rules of pleading.1* — From this decision, we ffel nq inclination to depart. We consider the declaration as substantially good.

The assignment of errors, brings before us, the act of the Court below, in the admission of testimony, and its charge to .the jury, on certain evidence before it.

It seems to have been a question how far the co-partnership of the plaintiffs, in relation to the ownership of the house, used and occupied by the defendant was established, or what evidence was competent to make out that point. The plaintiffs offered a witness, who deposed that one Ellis had sold the bouse *513to Patterson, one of the plaintiffs ;• but he could not say whether the purchase was for himself, or on account of the firm — but, that an account, which Ellis had contracted with the firm, was credited with the sum agreed to be paid, — that the defendant rented the house to Patterson, and occupied it seven months. The contract was not in writing.

To this evidence the defendant objected, for two reasons: First — 'because it did not establish the contract, as laid in the declaration; and, Second — ■ because there was no evidence that the firm account against Ellis was credited by the direction of either partner. The bill of exceptions states, that there was a conflict of evidence relative to the copartnership.

'fhe evidence offered, and admitted, seems to have been strictly legal in character, and tended to establish the existence of a co-partnership. What weight it was entitled to, in a conflict of evidence, was matter entirely for the consideration of the jury. We do not think there was error in the admission of this evidence.

Evidence was offered, to shew that Ellis was the agent of one Acker, and that the house was erected on land of, and belonged to one Bettis ; and the Court charged, that those circumstances, if admitted, constituted no defence to this action.

This charge is questioned, because it. said, if the defendant was responsible, either to Acker or Bettis, for the occupancy of the house, he ought not also to be liable to the plaintiffs — whom he shews to have no title.

*514If he occupied the house as the tenant, of the plaintiffs, it was not competent for him to dispute their title, when sued for rent, without shewing disturbance or eviction. Neither is shewn by the evidence, or was attempted to be shewn in the Court below.

There was no error therefore, in the charge, as given — and this disposing of the errors assigned, the judgment-must be affirmed.

2 Stewart 66 — ciark 5 Wind'°k 874>