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Genealogical Gleanings From
Reports of Cases Determined in the
Supreme Court of Alabama, 1820-1826
In the Circuit Court of Washington county, James Foster declared in assumpsit against John Bowie, describing a promissory note of defendant to him, by which defendant acknowledged himself to be indebted to him in $141.75; and thereby then and there promised to pay the same to one Thomas Carson. Averred that he did not pay to Carson; and in consideration thereof, and being so indebted afterwards, etc., promised to pay the said money in said note specified to the plaintiff according to the tenor and effect thereof. Breachthat defendant, through often requested, has not paid either to Carson or to the plaintiff. Pleas, non-assumpsittender of the money to Carson and tender to plaintiff and issues. J. Bowie having died pending the action, suit was revived by Sarah Bowie, his administratrix; verdict for plaintiff on the above mentioned pleas, and judgment against the defendant generally, not stating to be levied of the goods and chattels of her instestate, etc. On the trial, the only evidence offered by the plaintiff was a note as follows: “Due James Foster one hundred and forty one dollars and seventy-five cents, which I promise to pay Thomas Carson, sheriff of Baldwin county, to satisfy an attachmentJoseph Bates, administrator of Thomas Bates, deceased, against said Fosterwhose receipt will be good against said due bill, as witness my hand this 19th of April, 1816. John Bowie.” Which was object to by the defendantthe objection overruled and a bill of exceptions taken. She sued out a writ of error to this court.
Ruffin, for plaintiff
Crawford & Hitchcock, for defendant in error.
MINOR, J.The first assignment is that the declaration does not set forth any right of action in the plaintiff. The evident construction of the contract as set out is, that Bowie undertook and promised to Foster, and for his benefit, to pay Carson the money he owed to Foster. The right of action seems to be as clearly in him as it would have been on a note to pay a debt due to him at a particular bank or any other place. The second assignment is that the declaration does not show a sufficient consideration to support a promise. It has been heretofore decided by this court, that a writing, such as is described in the declaration, is to be received as evidence of the debt or duty, Allen v. Dickson, ante, 119, and that it is not necessary to aver the consideration. The 5th assignment is on the bill of exceptions. Although the declaration does not, the note in the bill of exceptions does, set out that the payment was to be made to Thomas Carson, Sheriff of Baldwin county, to satisfy an attachment, etc., I cannot see how setting forth this matter could have aided the party in his defense, or that the variance in the description of the instrument would present any difficulty to his barring a second recovery for the same cause of action. As to the 3d and 4th assignmentsthe title of the cause, as stated on the record, shows that the judgment is against the plaintiff in error in her representative character, and not against the interstate; but the judgment being against her de bonis propritis must for that cause be reversed, and judgment correctly rendered here.
The Chief Justice, having presided below, did not sit.
Source: Henry Minor, Reporter, Reports of Cases Determined in the Supreme Court of Alabama From May, 1820, to July, 1826 (Atlanta: 1891), pp. 264-265.
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