1 Ala. 259 (Ala. 1840), Harris v. Davis

Citation1 Ala. 259
Opinion JudgeORMOND, J.
Party NameHARRIS v. DAVIS.
AttorneyNOOE, for the plaintiff in error.
CourtSupreme Court of Alabama

Page 259

1 Ala. 259 (Ala. 1840)

HARRIS

v.

DAVIS.

Supreme Court of Alabama

January Term, 1840

Error to the Circuit Court of Franklin county.

THIS action of assumpsit was brought in the court below, by the present plaintiff, against the present defendant, in which the defendant had judgment. The following facts were admitted on the trial of the cause: That the account which was for the boarding and tuition of the defendant's children was correct; that the wife of the defendant, sometime during the year, 1837, filed a bill in Chancery against her husband (the defendant,) for divorce and separate maintenance; alleging that her husband treated her with cruelty, and was a non compos mentis, and incompetent to take charge of her children, and prayed that the guardianship of her children, (for whose boarding and tuition this suit is brought,) might be given to her, on the ground that the defendant was incompetent to the charge; and that an allowance be made for their maintenance: That the Chancery Court, by an order in the chancery suit, made an allowance to the wife, of a thousand dollars per annum, until the final hearing of the cause; for the maintenance of herself and her children, above alluded to: That in accordance with this decree, the defendant's wife lived separate and apart from him, with her children; and during the time, contracted the account sued for. An execution issued for the separate allowance to the wife, but was not collected, because the defendant and his wife came into court, and dismissed the bill, for divorce and separate maintenance.

Upon these facts, the plaintiff's counsel moved the court to charge the jury, that the defendant was liable to the plaintiff, for the amount of the account thus contracted; which charge the court refused, and charged the jury, that, if the account sued on, was contracted by the wife, after the allowance made by the Chancellor, and between that time, and the time that the defendant and his wife lived together again, that the husband was not liable for the amount of the account.

To the refusal to charge, and to the charge as given, the plaintiff excepted, and now assigns the same as error.

NOOE, for the plaintiff in error.

ORMOND, J.

This case is distinguishable from the case of Westmoreland v. Davis, decided at the present term of this Court, in this, that if the plaintiff cannot maintain this action, he is without remedy; as it is very certain, that an action...

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4 practice notes
  • 41 Me. 568 (Me. 1856), Hancock Bank v. Joy
    • United States
    • Maine Supreme Judicial Court of Maine (US)
    • Invalid date
    ...190; Smallpiece v. Daws, 7 C. & P. 40; Menard v. Wells, 5 C. & P. 583; Rukert v. Sanford, 5 Watts & Sargent; Harris v. Davis, 1 Ala. 259; Hughes v. Chadwick, 6 Ala. 651; Read v. Leyard, 4 Eng. L. & E., 523. 3. " In order to render the husband liable for a negotiable not......
  • 12 Ala. 101 (Ala. 1847), Grimshaw v. Walker
    • United States
    • Alabama Supreme Court of Alabama
    • Invalid date
    ...if any, to the grantor, because that would be the legal effect of the deed, if no such provision was inserted.--[ Johnson v. Cunningham, 1 Ala. 259.] Nor is there any thing in the case of Hindman v. Dill & Co. 11 Ala. 689, adverse to the view we are now taking. That was not the assignme......
  • 22 Ala. 396 (Ala. 1853), Smith's Ex'rs v. Wiley
    • United States
    • Alabama Supreme Court of Alabama
    • Invalid date
    ...of Laws 462. 9. As to the extent to which the law goes to sustain the equitable action of indebitatus assumpsit, see Harris v. Davis, 1 Ala. 259. R. H. SMITH and JOHN, 1. The question raised by the bill of exceptions, is the rejection of the testimony offered by the plaintiff in error in th......
  • 66 Ala. 244 (Ala. 1880), Ryan v. Couch
    • United States
    • Alabama Supreme Court of Alabama
    • Invalid date
    ...Such has, also, been the view taken by this court in its past adjudications.-- Leavitt v. Smith, 7 Ala. 175; Bondurant v. Buford, 1 Ala. 259; Dennis v. Chapman, 19 Ala. 29. We think the sounder rule, however, is to confine this principle to levies on personal property. Such levies invest th......
4 cases
  • 41 Me. 568 (Me. 1856), Hancock Bank v. Joy
    • United States
    • Maine Supreme Judicial Court of Maine (US)
    • Invalid date
    ...190; Smallpiece v. Daws, 7 C. & P. 40; Menard v. Wells, 5 C. & P. 583; Rukert v. Sanford, 5 Watts & Sargent; Harris v. Davis, 1 Ala. 259; Hughes v. Chadwick, 6 Ala. 651; Read v. Leyard, 4 Eng. L. & E., 523. 3. " In order to render the husband liable for a negotiable not......
  • 12 Ala. 101 (Ala. 1847), Grimshaw v. Walker
    • United States
    • Alabama Supreme Court of Alabama
    • Invalid date
    ...if any, to the grantor, because that would be the legal effect of the deed, if no such provision was inserted.--[ Johnson v. Cunningham, 1 Ala. 259.] Nor is there any thing in the case of Hindman v. Dill & Co. 11 Ala. 689, adverse to the view we are now taking. That was not the assignme......
  • 22 Ala. 396 (Ala. 1853), Smith's Ex'rs v. Wiley
    • United States
    • Alabama Supreme Court of Alabama
    • Invalid date
    ...of Laws 462. 9. As to the extent to which the law goes to sustain the equitable action of indebitatus assumpsit, see Harris v. Davis, 1 Ala. 259. R. H. SMITH and JOHN, 1. The question raised by the bill of exceptions, is the rejection of the testimony offered by the plaintiff in error in th......
  • 66 Ala. 244 (Ala. 1880), Ryan v. Couch
    • United States
    • Alabama Supreme Court of Alabama
    • Invalid date
    ...Such has, also, been the view taken by this court in its past adjudications.-- Leavitt v. Smith, 7 Ala. 175; Bondurant v. Buford, 1 Ala. 259; Dennis v. Chapman, 19 Ala. 29. We think the sounder rule, however, is to confine this principle to levies on personal property. Such levies invest th......

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