1 Port. 107 | Ala. | 1834
This was an action of trespass on the case, brought by the present plaintiff against the defendant as a common carrier1. To the declaration was filed a special plea in bar. To this the plaintiff demurred, and on the hearing and consideration of the demurrer, the court rendered judgment for the defendant. This judgment is the matter assigned as erroneous. It is' proper to premise, that according to the transcript of the record, the names of the parties to the demurrer have been misapplied. 'It reads “that the defendant’s demurrer to the plaintiff’s declaration being heard by the court, &c. it is considered the declaration is insufficient,” &c. In as much as the legal effect of the plaintiff’s demurrer is to subject his own declaration, as well as the plea to the scrutiny of the court — and as, if the former is found insufficient, the court must visit the demurrer upon it, this apparent mistake in the record may be disregarded, and the case may be examined as though the question had been formally-presented. The effect of the issue is to test, first, the sufficiency of the declaration, and if sustained, then the quality of the plea.
The case having been submitted without argument, or any suggestion of the points mooted below, or those mainly relied on here, I propose to investigate only so much of the case as is thought necessary to a decision of the question pre-. sented. This relates exclusively to the sufficiency of the declaration. The declaration is unusually brief — which however is no objection if it be found to contain in substance all the material allegations. It begins by a recital of the defendant’s being and having been a common carrier of goods, &c. ' ■ and of the plaintiff having caused to be delivered to defendant thirty-five bales cotton, of great value, to wit, -of the value of one thousand dollars, to be safely and securely carried by him from the one place mentioned to the other — -and at the latter
For these insufficiencies, chiéfly-the latter, we think the judgment below must be affirmed.