8 Ala. 44 | Ala. | 1845
The defendant, by his refusal to permit the plaintiff to take possession of the slave, and deliver him up in discharge of the suretyship, previous to the determination of the suit of Starr against Burke, and instead thereof allowing the latter to take him into possession, furnished an opportunity for his removal. These facts are alledged in the declaration, and in addition, it is stated that the plaintiff, at the expense of much time, trouble and money, recovered the slave; that he had been sold, and the proceeds, pro tanto, applied to the discharge of the judgment against Burke, for which the defendant, plaintiff and their co-security, Brown, were liable; that, that judgment was not thereby extinguished; besides this, the defendant had not contributed any thing to defray the expense and charges consequent upon the recovery of the slave. Assuming the facts stated to be true, as we are bound to do, and we think they show that the plaintiff has been injured by the improper conduct of the defendant, and that the latter has actually received a benefit by the plaintiff’s industry, and expenditure of money. These grounds certainly furnish a good cause of action, which may be made available in the form adopted by the plaintiff. This we intimated when this case was here at a previous term, but in a different form, Long v. Kent, 6 Ala. Rep. 100.
As, then, the defendant did not object to the declaration previous to the trial, its defects were cured by the act of 1824. Although there was a demurrer to the replication to the plea of former recovery, which it would, perhaps, have been competent for the Circuit Court to have visited upon the declaration, yet we think the act cited, requires that. the objection should have been distinctly made by a demurrer to the declaration, or that it should have been pointed out orally, by the defendant, in urging his demurrer to the replication. The intention and spirit of the enactment cannot be carried out by any other construction; and where it is proposed to take advantage of any defect in the preceding pleadings of the parties, the record should show that it was insisted on in the primary Court.
The judgment must therefore be affirmed.