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Genealogical Gleanings From
Reports of Cases Determined in the
Supreme Court of Alabama, 1820-1826
Edward King declared against Nathan Whiting “of a plea that he render unto him $426.68, which to him he owes, and from him unjustly detains.” The declaration then proceeds in the usual form of assumpsit, on a bill single of Abraham Philips to Whiting for that sum, assigned to King, and at the conclusion states an inebriates assumpsit for the specified sum. Whiting demurred specially; the demurrer was overruled. He then filed several pleas, denying that he indorsed the note or that he made it, averring that Philips had paid the amount, etc. The Circuit Court, taking no notice of the pleas, rendered final judgment against him, as by default, on which he prosecuted a writ of error.
Ruffin, for plaintiff; Crawford and Hitchcock, for defendant in error.
CRENSHAW, J.In this case there are nine assignments of errors. It will only be necessary to take notice of the second, viz: "That the plaintiff in the court below proceeded in an action of debt, when the defendant was liable only in assumpsit."
The undertaking of the indorse is collateral, not absolute. He is liable only in the event of the maker's failing to pay. The remedy against him is by action of assumpsit, and not debt. This error is not cured by our statute of amendments. In this opinion the court are unanimous.
Source: Henry Minor, Reporter, Reports of Cases Determined in the Supreme Court of Alabama From May, 1820, to July, 1826 (Atlanta: 1891), p. 122.
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