Maupay v. Holley

3 Ala. 103 | Ala. | 1841

COLLIER, C. J.

There was no demurrer to the declaration, and the plea consequently, did not contest the legal sufficiency of either count. Where a declaration contains several counts, each count is considered as the statement of a different cause of action; and where issue is taken upon all, the plaintiff is entitled to recover upon proving the allegations of either.

There can be ho doubt, that where the defendant negatives, by a plea, the cause of action set out by the plaintiff, in order to recover, the latter must sustain his declaration, and that this can only be done by proof corresponding with its allegations.— But if it discloses several causes of action, there can be no necessity for proving each of them.

In the case at bar, the Court charged the jury, that “if he (the plaintiff) fails to prove any of the counts set forth in his declaration, he cannot recover.” This charge is directly contrary to law. The bill of exceptions is so exceedingly imperfect, that we cannot understandingly examine the other charges excepted to.

The judgment is reversed, and the cause remanded.