Wright v. Burt

5 Ala. 29 | Ala. | 1843

GOLDTHWAITE, J.

1. When a demand is cognizable by a justice of the peace, the statute requires the defendant to be sued either in the beat where he resides, or in the one where the debt was contracted. [Digest, 293, § 8.]

We think by this act the plaintiff is allowed the privilege of sue-ing his debtor in the beat where the debt was created. The note is only the evidence of the debt, and may havebeen’ given at a different place from that where the contract was made and perfected by the delivery of the thing sold. In our opinion there is no error in the decision of this point.

2. With respect to the overruling of the plea, we think it very possible there is some mistake; but we must be governed by the bill of exceptions. That states, that the Court, after the evidence was given, overruled the plea, and required the defendants to plead over; this was erroneous, because the defendants thereby were precluded from contesting the question of fact before the jury. The plea having been received without being put in form, must be considered as presenting all the allegations necessary to bring the defence within the statute; and therefore could not be overruled by the Court. The proper course would have been to instruct the jury, if the evidence for the plaintiff was believed, they ought to find for him, as the plea under that evidence was not sustained.

The judgment of both Courts must be reversed, and the cause remanded.