9 Ala. 627 | Ala. | 1846
In respect to the rule for an attachment, the propriety of its discharge is not a question that can be
The motion to set aside the judgment by default addressed itself to the discretion of the Circuit Court, under the circumstances of the case' — all which it was entirely proper to take into consideration. This being the case, we cannot undertake to revise the refusal, and determine whether it was the result of a wise exercise of discretion. Upon a previous trial of this cause, had subsequent to' the judgment by default, there was a verdict and judgment for the plaintiff, which was reversed by this court on error. That reversal, it is true, did not extend so far as to vacate the judgment by default. Yet, as the cause was in fieri, it was entirely comptent for the County Court, upon its being remanded, to set aside that judgment, and to permit the plaintiff to exhibit his interroga-’ tories anew. See 6 Ala. Rep. 174.
The remaining question is, whether the plaintiff’ should have been allowed to prove charges in his account for services rendered subsequent to the promise alledged in his declaration. In personal actions, it is said, the declaration must in general state a feme when every material or traversiblefact happened, and when a venue is necessary, time must also be mentioned. The precise timé, however, is not material, even in criminal cases, unless it constitute a material part of the-contract, &c. declared upon, or where the date &c. of a written contract or record, is averred. “ In assumpsit upon a parol contract, the day upon which it is made being alledged only for form, the plaintiff is at liberty to prove a contract, express or implied, at any other time.” Chitty’s Plead. 3d