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Genealogical Gleanings From
Reports of Cases Determined in the
Supreme Court of Alabama, 1820-1826
Miguel Eslava declared in assumpsit for money had and received, against Lewis Judson, in the Superior Court of Mobile county. General issue. Verdict and judgment for plaintiff; on which Judson brought his writ of error. The points in the assignments of error and bill of exceptions appear in the opinion of the court.
Crawford and Hitchcock, for the plaintiff. Elliott, for the defendant in error.
THE CHIEF JUSTICE.A reference to the writ in this case will show, with sufficient certainty, the court in which the declaration was filed. The omission relied on is amendable by such reference, after demurrer or plea. If the declaration had been filed after the time required by law, pleading to the merits would have cured the defect. It is a waiver of any advantage which might have been taken as to the time of filing the declaration.
It appears that the court below rejected evidence offered by the defendant, to prove that plaintiff, in 1812, had borrowed $500 of him. We cannot presume more than appears by the record. The debt attempted to be proved, may have been a subsisting debt, before the assumpsit on which the action was brought. It was a set-off, and not a payment. For a payment pre-supposes a debt due from the party paying to the party paid. The plaintiff had no notice or right to expect, from the state of the pleadings, that evidence would be offered. It was not to be inferred that the defendant’s demand would be offered as a set-off, merely because it acerued from the plaintiff’s cause of action. The defendant might have offered it as a set-off, or brought his action for it. The court below rejected this evidence.
Another error assigned is, “that no legal consideration is set forth in the declaration.” The declaration alleges that money was had and perceived, without averring “for the use of the plaintiff.” The plaintiff’s title is informally and defectively stated; but it is far to infer, that on this issue a verdict could not have been found for him, unless it had been proved, to the satisfaction of the jury, that the money was had and received to the plaintiff’s use. It is now too late to take advantage of the uncertainty. The defective statement was cured by the verdict.
It is further assigned that the breach does not aver that no part of the money was paid. The count charges that the defendant assumed to pay a certain sum of money. The breach assigned is, that he did not pay that sum. It is sufficiently if the breach be as broad as the contract declared on. If the defendant had paid any part of the money, he could have proved it on the trial of the issue, and had every advantage, under this assignment of the breach, which he could have had if it has been laid as required.
By the bill of exceptions, it appears that Antonio Hendinburg, born in the dominions of the King of Spain, was an inhabitant of New Orleans when Louisiana was taken possession of by the United States; but it did not appear that he was there, or where he was, when Louisiana was admitted into the Union that he was called as a jurorchallenged for the cause, the objection overruled, and he sat as a juror on the trial.
It does not appear that he was ever naturalized in the ordinary mode.
By the 3d article of the treaty, ceding Louisiana to the United States, it was stipulated that the inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted, as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States. This is the only article of that treaty which could operate on this questions. It does not secure citizenship until the inhabitants are incorporated into the Union. Until then, they are only entitled to protection, in the free enjoyment of liberty, property, and the religion they profess. It does not appear that Heidinburg was an inhabitant of Louisiana when that territory was incorporated into the Union. If he was not, being a foreigner, neither the treaty referred to, nor any other provision of our laws, entitled him to the rights and immunities of a citizen of the United States. A man must be a citizen to be a competent juror. On this ground, the judgment must be reversed, and the cause remanded for a new trial.
Source: Henry Minor, Reporter, Reports of Cases Determined in the Supreme Court of Alabama From May, 1820, to July, 1826 (Atlanta: 1891), pp. 2-4.
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