Maddox v. Brown

9 Port. 118 | Ala. | 1839

GOLDTHWAITE, J.

No objections were made to the sufficiency of the declaration in the court below, by demurrer or otherwise, nor was the sufficiency of the evidence to sustain the action there questioned until after verdict; it thererore becomes material, to enquire how far the errors supposed to have been committed, can now be looked into. The statute declares, that no cause shall be reversed) arrested, or otherwise set aside, after verdict or judgment, for any matter on the face of the pleadings not previously objected to; provided, the declaration contain a substantia lcause of action, and a material issue be tried thereon — (Aik. Dig. 266.)

The declaration, in this case, contains two counts: one is framed on an instrument of writing in the form of a bond, with a condition, of which proferí is excused on account of its loss: the other is a general count, for money had and received by the defendant to the plaintiff’s use. The only defect in the latter, is the omission to aver a promise to pay on request. This omission cannot be regarded as matter of substance, especially after verdict, as the promise to pay is a mere legal inference, arising from the fact of indebtedness, and, in point of fact, has no existence in most cases.

It is supposed, by the plaintiff in error, that the jury, by the verdict returned by them, have negatived the idea, that they intended it to be general, and to be applied to both counts of the declaration; as they find for the plaintiff five hundred dollars debt, in the declaration mentioned, by way of damages, for the breach of his said contract. It is possible, that such may have been the intention of the jury, but we are not permitted to defeat the claim of the plaintiff in the court below, on a mere conjecture. If the plaintiff in this court wished to present his case for revision, it was his business to divest it of all doubt, as we cannot be expected to interfere to re-vérse a judgment, because it may possibly be erroneous.

If, however, we could pass around the verdict, and were called on to examine the first count of the declara-ration, there is nothing in it, to raise a legal presumption, that the contract stated is invalid or illegal. We cannot infer, from the terms pre-emption and floats, that this contract must refer to a pre-emption right, under some one of the acts of Congress, or that it must necessarily be void or inoperative, by reason of any inhibition of sale contained in them. If it was important to the rights of the plaintiff in error to have a decision of these questions, the precise point should have been presented in the pleadings, or on a motion to instruct the jury On the points Of law arising out of the evidence.

The same remarks will apply with full force to the' affidavit of the loss of the instrument. It may or may not have been introduced in evidence to the jury as proof of the instrument, bu't it is certain, that the only way in which this court could receive information on this subject, is by a bill of exceptions, or demurrer to evidence.

There is no error in the judgment, and it is affirmed.