
    Lassiter v. Thompson.
    
      Action on Common Counts.
    
    1. Plea of statute of limitations of three years. — When the complaint contains only the common counts, a plea setting up the statute of limitations of three years, but not averring that the demand sued on is an open account, is demurrable, though pleaded in short by consent.
    
      2. Sufficiency of verdict; surplusage. — In an action on the common counts, the general issue being pleaded, and the statute of limitations of three years, a verdict for the plaintiff, with the words added, “the value of the five bales of cotton, with three years interest,” authorizes a judgment, for the plaintiff, for the amount specified, the other words being regarded as surplusage.
    Appeal from the Circuit Court of Bullock.
    Tried before the Hon. J. M. CARMICHAEL.
    This action was brought by M. W. Thompson against J. T. Lassiter, and was commenced on the 15th September, 1885. The complaint contained only a single count, which claimed $250, “for and on account of money had and received by the defendant, for tbe use of the plaintiff, on, to-wit, January 25th, 1885, with the interest thereon.” The defendant pleaded, “in short by consent,” the general issue, and the statute of limitations of three years. The court sustained a demurrer to the latter plea, because it did not aver that the claim sued on was an open account; and the , plea was then amended by adding that averment. The jury returned a verdict in these words: “We, the jury, find for plaintiff, the value of the five bales cotton, 249, and 3 years’ interest, 347.29”; and the court thereon rendered judgment for the plaintiff, for $347.29, with costs. The ruling on the demurrer to the plea, and the judgment of the court, are now assigned as error.
    Aebington & Graham, for the appellant.
    Norman & Son, contra.
    
   CLOPTON, J.

The pleas setting up the statute of limitations, to which the demurrer was sustained; failed to aver that the demand sued on is an open account; and under the complaint proof could be made of an account stated, or of an open account. Under the form of the plea prescribedby the Code, it is necessary to aver the nature and character of the demand sued on; and we have heretofore held that a plea setting up the statute of limitations of three years'is defective, if it fails to aver that the claim is an open account. Harrison v. Harrison, 39 Ala. 489.

The verdict of the jury is responsive to the issues. The words, “the value of the five bales of cotton,” contained in the verdict, may be rejected as surplusage. Thus regarded, the legal effect of the verdict is to find the issues in favor of the plaintiff, and to assess his damages at the amount stated therein.

Affirmed.  