The Montgomery advertiser., 1904-08-25

injuries. a judgment has been recov-
cred, such judgment becomes a debt
due from the defendant therein to the
plaintiff and as such. survives the
death of the plaintiff and can be en-
forced by the personal representative
Of the plaintiff therein.
Afirmed. Opinion by HARRISON. J.
KAReER v. FIELDS.
Action OF Trespass on the case.-Ap-
peal from the Circuit Court Of
Cullman.
1. Action on the case: sufficiency Of
| plea.-In an action n trespass on the
case to recover damages for the sale
| and removal Of cotton on which plain
| tiff claimed to have lien by virtue
| of a mortgage, Of which the defendant
had knowledge or notice, whereby
plaintiff was prevented from enforcing
his said lien, where the defendant
| pleads the general issue. the sustain
| ing of a demurrer to the special plea
averring that the debt. the considera-
| ton of the mortgage described In the
complaint. was paid or satisfied in full
before this suit was brought" IL erro-
neous is error without injury: since
| the defendant had the right to make
proof of the fact set UP by the special
| plea, under the plea of the general
issue.
| q. odmes Sdme.-ln SuCn n case, q
| special plea setting up that the mort
gage described in the complaint was
| given to secure notes executed for the
| purchase money of certain lands. and
that the plaintiff in effecting the sale
| Of said lands made misrepresentation
in reference thereto. and declined. up
on the request of the purchaser, to
execute and deliver the deed describ-
ing the lands contracted to be sold.
| a nm he M RI
OF the plaInif. the purchaser Offered
to rescind said contract for the pur-
chase of said land and abandon the
possession of the land which he had
purchased and of which he was in
| possession, and the plaintiff thereupon
and before the commencement of this
| suit entered upon said land and as
sumed the control and possession
thereof" and subsequently sold them
to another party, does not set up the
! rescission or cancellation of the con-
tract. and is subject to demurrer,
3. Same: same.-In such case.
special plea which AYERS "that the
debt. the consideration of the execu-
| ton of the mortgage mentioned in the
complaint. has been paid or satisfied
since this suit was commenced. is de-
| fective as plea. since the last con-
tfnuance. and Is subject to demurrer;
such plea failing to show that the
plaintiff accepted anything In satisfac-
| faction of his debt
4. Same: same: res adjudicata.-In
such a writ, where the complaint al
leges that the cotton. which was pur-
chased by the defendant. was raised
| In the year 1893. a special plea which
sets up that the plaintiff had recov-
cred Judgment against this defend
ant FOR cotton alleged by the plain
tin to have been purchased by defend
ant during the year 1892 or 1898,
| which said cotton was alleged to
referred to and described in the COM
plant in the present case, and de-
PENDANT alleges that said suit was be-
tween the same parties as this suit
and upon the same cause of action or
lien described in said suit and said
amount so recovered was for an
| amount more than was due upon said
| mortgage" is defective as a plea Of
| res adiudicata. and Is subject to de-
murrer
5. Pleading and practice: amend
| ment of complaint-Ir An action OF
trespass on the case. where the plain
| tin seeks to recover damages for the
purchase and removal of cotton on
| which the plaintiff had q lien by mort
| gage. whereby plaintiff was pre-
| vented from enforcing said lien, and
in the complaint it Is alleged that the
| cotton In controversy was raised dur
| ing the year 1892. the plaintiff can,
upon motion. amend tho complaint by
! striking out the year 1892 and insert
Ing in lieu thereof the year 1893:
such amendment not making an en-
tirely new cause Of action. but sim
ply correcting the averment of the
year in which the cotton was raised.
g. Pleading and practice; when
appeal not dismissed because defend
ant adJudged bankrupt.-Where the
defendant in state court against
whom Judgment has been rendered.
takes an appeal. and pending such ap-
peal the defendant is adjudged a bank
rupt by the United States District
| Court and as such is discharged.
! from all debts and claims which are
| made provable under the act of bank
ruptcy. and subsequently there is a
motion made in the Supreme Court
| to dismiss the appeal because the de-
PENDANT had been adJudged a bank
rupt. but 1t is not made to appear that
the debt to the defendant which is
| sought to be enforced bv suit in which
| the appeal was pending was among
the debts which were duly scheduled
in the bankruptcy proceedings and
from which he sought relief. and It is
not shown that the rlaintiff in the
| suit wherein the appeal is pending
had notice or knowledge of the pro-
ceedings in bankruptcy. the motion to
dismiss said appeal should be denied.
!. Action on the case for destruc-
ton of lien; estoppel.-In an action
| of trespass on the case to recover
damages for the purchase and re-
moval of cotton on which plaintiff
claimed a lien. whereby the plaintifr
was prevented from enforcing his
said lien. whore the claim of plain
tiff to the cotton In controversy was
based upon mortgage executed to
him by third person, the defendant
In the suit is not estopped from set
ting up that said mortgagor did not
have title to the lands described in
| the mortgage. upon which the lands
| the cotton alleged to have been pur-
chased by the defendant was raised.
| Reversed and remanded.
Opinion by HARRISON. J.