2 Stew. 350 | Ala. | 1830
The first assignment is, that the Court erred in sustaining the demurrer to the third plea. As this assignment was not particularly re-bod on by the counsel, it is sufficient to say, the plea did not presenta legal defence, hut was clearly insufficient for reasons that it contained no description of the executions, or any averment that the horse was the property of the defendant therein.
Second. It is also assigned for error, that the Circuit Court rejected admissible evidence, and gave and refused instructions to the jury, as described in the bill of exceptions. '
The first branch of the objection respecting the testimony is, that the executions were offered in evidence, under the special pleas, to shew the defendant’s authority for taking and selling the horse, which the Court rejected. On comparison, it is found, that a variance exists in the amount of all the executions offered in evidence,
Under this assignment, it is further objected that the
To mitigate hardship and avoid injustice from mistakes,, slight variances and inadvertencies, the Courts usually grant now trials on equitable terms at the instance of the aggrieved party, and permit amendments in the pleadings. Such was the relief the law contemplated in a case like the present, and it can scarcely be doubted, but the Court would have granted a new trial on terms, had it been applied' for on a shewing that material injustice would result from the misdescription of the executions-A majority think the judgment below must be affirmed.
In this case an- execution _ in favor of Horne, as described in the plea, is for the sum ' of twenty-five dollars, with costs. The execution offered in evidence, was for twenty-five dollars debt, two dollars costs, and eighteen and three quarters cents interest. On the back of this execution, from the indorsement made by the justice, it is obvious that this was a renewal of a pre.
I am therefore inclined to the opinion; that if there was a variance in the case before us, it was so small a one as to be immaterial.
These executions, therefore, should have been admitted, and as a necessary consequence of their admission, the evidence going to prove that the right of property in the horse levied on, was in the defendant in the execution, or in other words, that the sale of the horse to the plaintiffbelow, in the pfésent action, was fraudulent and void.
For these reasons J think the judgment should be reversed and the cause remanded.
Judgment affirmed.
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