Winston v. Trustees of the University of Alabama

1 Ala. 124 | Ala. | 1840

ORMOND, J.

— The declaration does not disclose the precise nature of the plaintiff’s demand. It is the common counts for money had and received, and money paid, laid out, and expended for the defendant’s use. Under this count the plaintiff might give in evidence a bill of exchange or promissory note, or a gross sum received by the defendant for the use of the plaintiff or paid by the plaintiff at the defendant’s request, and in either case it is obvious the statute of limitation of three years, would not apply. Although it may be true that the plaintiff might declare in this general form and maintain his action by proof, which would constitute an open account, yet, as the law authorizes him thus to declare, a plea which would not meet every aspect of the plaintiff’s case, would not be good on demurrer.

A plea cannot be sustained which rests for its validity upon a supposed stale of facts, which may not exist ; it would want that certainty which is necessary in all legal proceedings. If the declaration is general, as in this case, the defendant may, on motion, compel the plaintiff to furnish a bill of the particulars of the cause of action ; but if he declines or neglects this, an.d the declaration does not state the fads upon which the plea is founded, they must be averred in the plea, that the plaintiff may lake issue upon them either in fact or in law. In general, this rule is confined in its application to new matter set up in avoidance of the plaintiff’s demurrer. But in the action of assumpsit, from the general form of declaring permitted by law in a case like the present, the defendant must, in his plea, show affirmatively that the bar of the statute has taken place. In this case the statute of three years being relied on, and the declaration being sufficient to authorize the introduction of proof of a claim, which would not be barred until the lapse of six years, the defendant must, to avail himself of the statute of three years, plead specially that the demand sued for is an open account; thus narrowing the controversy to a single point, on which an issue can be taken.

This appears to be the form of pleading on a statute similar to ours in the State of Kentucky. (Dyote v. Letcher, 6 J. J. Marshal, 541.)

Let the judgment be reversed and the cause remanded.