Kent v. Long

COLLIER, C. J. The defendant, by his refusal to permit the plaintiff to take possession of the slave, and deliver him up in discharge of the suretyship, previous to the determination of the suit of Starr against Burke, and instead thereof allowing the latter to take him into possession, furnished an opportunity for his removal. These facts are alledged in the declaration, and in addition, it is stated that the plaintiff, at the expense of much time, trouble and money, recovered the slave; that he had been sold, and the proceeds, pro tanto, applied to the discharge of the judgment against Burke, for which the defendant, plaintiff and their co-security, Brown, were liable; that, that judgment was not thereby extinguished; besides this, the defendant had not contributed any thing to defray the expense and charges consequent upon the recovery of the slave. Assuming the facts stated to be true, as we are bound to do, and we think they show that the plaintiff has been injured by the improper conduct of the defendant, and that the latter has actually received a benefit by the plaintiff’s industry, and expenditure of money. These grounds certainly furnish a good cause of action, which may be made available in the form adopted by the plaintiff. This we intimated when this case was here at a previous term, but in a different form, Long v. Kent, 6 Ala. Rep. 100. [47] We have repeatedly held that a general demurrer to an entire declaration cannot be sustained if there be one good count, but if there be a misjoinder of actions, without reference to the sufficiency of the counts in themselves, the defendant is entitled to judgment. [Chandler v. Holloway, 4 Porter’s Rep. 17.] This is the rule, where the objection for misjoinder is made on demurrer, and at commen law, perhaps, a motion in arrest of judgment, or a writ of error would lie, where the plaintiff had thus united distinct actions. But the act of 1824, “ to regulate pleadings at common law,” (Clay’s Dig. 322, § 53,) cures many defects in pleadings. The first section enacts, “ 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 contains a substantial cause of action, and a material issue be tried thereon.” We have always given to this statute a liberal interpretation in advancement of the object contemplated by the legislature. It is clear that the declaration contains a substantial cause of action, whether we consider either count, although they are improperly united. And the record shows that a material issue was tried thereon. The plea of non assumpsit may, after verdict, be regarded a denial of the entire declaration, though inappropriate to an action on the case; for it has been frequently held, that “ not guilty,” will sustain a verdict for the plaintiff, in an action of debt. As, then, the defendant did not object to the declaration previous to the trial, its defects were cured by the act of 1824. Although there was a demurrer to the replication to the plea of former recovery, which it would, perhaps, have been competent for the Circuit Court to have visited upon the declaration, yet we think the act cited, requires that. the objection should have been distinctly made by a demurrer to the declaration, or that it should have been pointed out orally, by the defendant, in urging his demurrer to the replication. The intention and spirit of the enactment cannot be carried out by any other construction; and where it is proposed to take advantage of any defect in the preceding pleadings of the parties, the record should show that it was insisted on in the primary Court. The judgment must therefore be affirmed.