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demur to the evidence, and the plaintiff in such case would be compelled either to join in the demurrer, or to waive the testimony.
Alexander v. Fitzpatrick, 4 P. 405. 135. For the refusal of an inferior court to compel a party to join in demurrer or waive the testimony, error will lie; though it seems that a party would not be permitted to complain in error of the rejection of a demurrer, when the record shewed it to be frivolous.
IX. Pleadings in Particular Actions.
136. Declaration in trespass vi et armis, for maliciously searching plaintiff's house, plaintiff may aver and prove an injury to his reputation.
Anonymous, A. R. 52. 137. Writ in debt on note, with interest from date, should claim the principal sum due, and the interest must be covered under the damages.
Butler v. Limerick, A. R. 115. 138. In trespass, declaration on the first count is under a “whereas,” the second count contains a positive averment, judgment will not be arrested.
Gordon v. Hood, A. R. 122. 139. In debt against one of several obligors, it is not necessary to aver that the others failed to pay.
Clay v. Drake, A. R. 164. 140. Action qui tam against pedlar for selling goods without license, declaration must aver that he was a pedlar, and such as is required to have license, and that he sold goods without.
Prigmore v. Thompson, A. R. 420. 141. Declaration under statute of fraud, need not aver the promise to be in writing: the distinction is when the liability is one at common law, and when created by the statute.
Brown v. Adams, 1 S. 51. 142. In debt, pleadings must be consistent, and show a certain sum due with sufficient precision and certainty to enable the court to render judgment on demurrer.
McKenzie & Bennock v. Conner, 1 S. 162. 143. In declaring on an administrator's bond or other official bond given to the judge of the county court, the condition must be set out and the breaches assigned; and the common law mode of declaring on the penalty of the bond is not applicable to such cases. Fuqua v. Stone, 1 S. 435.
144. In slander there need be no colloquium where the words are unequivocal, and point with certainty to the person.
Thinman v. Matthews, 1 S. 384. 145. In declaration on covenant to pay money on a certain day for the hire of
negroes who are admitted by the instrument to have been hired till that time, it is necessary to aver that the defendant did have the use of the negroes.
Bassetts ex'r. v. Jordan, 1 S. 352. 146. Covenant with the condition if the action accrues on an event exclusively or mainly within the knowledge of the plaintiff, he must aver and prove notice. But if defendant has an opportunity of knowing the fact, no notice of the performance of the condition is necessary.
Huf v. Campbell, 1 S. 543. 147. In case for deceit, any allegation which necessarily supplies a knowledge of the unsoundness, &c. is a sufficient averment of the scienter.
Pryor v. McNairy, 1 S. 150. 148. In trespass vi et armis a plea of justification under process, must specify the process particularly, and state every fact necessary to show the justification, and a varience would exclude the evidence of the process.
Harrison v. Davis, 2 S. 350. 149. In debt on bond, it is sufficient if the breaches are assigned in the replication, and it is not error that the declaration is on the penalty.
Davis v. Dickson, 2 S. 370. 150. A bastardy bond is not within the statute of 1824, which requires breaches to be assigned. Lake & Bannon v. the Governor, 2 S. 395.
151. A constable levied nine executions on a negro, and took nine bonds payable to plaintiff for delivery of the property. The bonds being forfeited, the plaintiff brought an action of debt, and declared in one count on the nine bonds; on demurrer the proceedings held to be proper.
Sugg v. Burgess, 2 5.509. 152. Declaration on a lost note sufficient, if it avers its execution, its contents and its loss, and that it is still due the plaintiff, it need not aver that it was not indorsed when lost, nor whether lost before or after due.
Chaudron v. Hunt & Norris, 3 S. 31. 153. Under the act of 1911 against marking hogs, on appeal from justice of the peace, the declaration having omitted to aver that the hog was marked in the mark of the defendant, the omission is fatal and not cured by a reference to the warrant. Though a declaration is not necessary in this, the demand not exceeding $20—having filed one it was necessary to be governed by the rules of pleading: this being a penal action where much strictness is required.
Reagh v. Spann, 3 S. 100. 154. In debt on note, though the interest be demanded in the declaration from the date, yet it being not demanded as part of the debt itself, the declaration is sufficient.
Boddie v. Ely, 3 S. 182. 155. Declaration, founded on instrument for the payment of a sum certain, "together with costs of suit and interest,” the amount of which is not specified in the instrument nor averred in the declaration, will authorize a recovery of the sum certain and interest thereon.
Bryant v. Simpson, sur. 3 S. 339. 156. Declaration on note promising to pay a certain surn of money for staves, subject to a deduction for any number not procured, at two dollars per thousand, it is essential to aver in the declaration the number of staves actually procured.
Martin & Hill v. Woodall, 1 S. & P. 244. 157. Declaration containing a count on false warranty of a slave, may be joined with a count in trover, as they are both in tort.
Caldwell v. Wallace, 4 S. & P. 283. 158. It seems that the statute authorizing the assignment of many breaches in actions on bonds, is to be construed as permitting only as many breaches to be assigned as there are distinct stipulations, or things to be done, and that under it more than one hreach cannot be assigned to each stipulation.
Wade v. Killough, 5 S. & P. 450. 159. Plea in an action on bond to execute titles at a particular day, averring that titles were made, but not shewing at what time, whether before the commencement of the action would be considered defective-semble.
Ibid. 160. But such plea, if faulty, will be excused by defective assignment of breaches.
Ibid. 161. Plea to an action upon a title hond, averred an execution of the titles by the defendant and a stranger-held, not objectionable because of the introduction of the name of the latter.
Ibid. 162. When the signature of a promissory note is illegible, and where no description of the signature is attempted in the declaration, and where the defendant does not interpose the statute plea, there is no such variance as
will exclude the note from evidence, so as to operate to defeat the action; such a case does not differ from one where the signature is evidenced by a mark.
Dew et al. v. Garner, 7 P. 543.
See Abatement- Amendments and Jeofails-Evidence-Judgment— Parties
to Actions— Tender-Set-off
I. PROCEEDINGS UP TO THE TIME OF TRIAL, WRIT, DECLARATION, PLEAS,
II. PROCEEDINGS ON THE TRIAL, AND SUBSEQUENT THERETO, JUDGMENT, VER
DICT, EXECUTION, &c. III. PRACTICE IN SUPREME COURT; ASSIGNMENT OF ERROR; BILL OF EXCEPTIONS; TRANSCRIPT,
I. Proceedings up to the time of Trial, Writ, Declaration, Pleas, Issue, fc.
1. Omission of attorney's signature to the declaration, supplied by reference to the body of the declaration or writ.
Phillips v. Malone, A. R. 110. 2. The words payment and set off do not amount to a plea, and plaintiff may treat them as a nullity.
Kelley v, Owen, A. R. 252. 3. The omission of similiter is not error.
Wilson v. Oliver, 1 S. 46. 4. Plea in abatement by defendant, and demurrer thereto, and to the same count plea of not guilty and issue--after verdict plea in abatement is to be considered as a nullity.
Robertson v. Lee & wife, 1 S. 141. 5. When the defendant pleads to an amended declaration, he thereby acquiesces in the order of amendment, and waives all right to revise the decision of the court on the original declaration or on his plea thereto.
Caldwell & Bennett v. May, 1 S. 425. 6. Filing the general issue, is a waiver of plea in abatement.
Draughan v. Tombecbee Bank, 1 S. 66. 7. To a writ of certiorari, the justice returned the warrant &c. and a statement certifying that he had rendered judgment but not setting out a copy of the judgment, it was held that going to trial on the merits waived all irregularity in the justice's return.
McGrew v. Adams & Elliot, 2 S. 502. 8. On an appeal, when issue was joined to the country though the sum in controversy be under $20, the judgment will not be reversed, because the issue was tried by a jury:
I bid. 9. The court may, in its discretion, if a plea is manifestly bad, strike it out or put the party to his demurrer; but, unless obviously insufficient, the proper mode is to demur.
Johnson, adm. v. Wren, 3 S. 172. 10. Motion to strike out a plea, is addressed to the discretion of the court, and the refusal is not revisable on error.
Johnson adm. v. Wren, 3 S. 172.
11. Payment may be given in evidence under the general issue, to reduce the damages, although made after suit brought.
McMillan v. Wallace, 3 S. 185. 12. After appearance and plea to the declaration, no objection can be taken defect in the writ.
Hamner v. Eddins, 3 S. 192. 13. To a plea, plaintiff replied and issue was joined; and at the trial, and while the issue was before a jury, but before their retirement, the court allowed the plaintiff to withdraw his replication and to demur to the pleathis was in the discretion of the court. Brown v. Massey, 3 S. 226.
14. Defendant entitled to judgment of non pros, when plaintiff fails to declare within three days, unless good cause be shewn.
McCrary v. Boyd, 3 S. 279. 15. When parties proceed to trial without a replication to a special plea in bar, and the matter of the replication is available under the general issue, the informality is presumed to have been waived.
Bond v. Hills & Fay, 3 S. 283, 288, 444. 16. The act of 1819, does not divest the courts of a general superintending control over the pleadings and proceedings of suitors therein; they may set aside office judgments, whether of default or non-suit, upon good cause shewn at the succeeding term, even after such judgments have been perfected,
Acre v. Ross, adm. 3 S. 289.
Wilson v. Torbert, 3 S. 296. 17. When in an action a special plea in bar is alone pleaded, to which a demurrer is overruled in the court below, and on writ of error the judgment on demurrer, is reversed, and the plea holden radically bad; this court will render the proper judgment.
McCauseland v. Drake, 3 S 345. 18. When defendant demurs and pleads, to the same part of the declaration, and the issues of fact are tried, he is presumed to have waived his de
Morrison, adm. v. Morrison, 3 S. 444. 19. Upon overruling demurrer to a plea, and giving leave to the plaintiff to reply—it is not necessary to withdraw demurrer as the replication is a virtual withdrawal.
Craig v. Blair, 3 S. 448. 20. A refusal to permit an amendment of a plea after the overruling of a demurrer, will not be revised in the supreme court, unless it is shewn in the record in what the proposed amendment consisted.
Ibid. 21. An agreement by plaintiff to accept a plea presenting available matter, as a plea in abatement, after pleas in bar are filed, is a waiver of all objections as to matter of form.
Cleveland et al, ex'rs v. Chandler, 3 S. 489. 22. A demurrer cannot reach the order of pleading, and where a plea in bar and in abatement are pleaded together, the proper rule is to move to strike out the latter or treat it as a nullity-areplication would be an admission that it was regularly filed.
Ibid. 23. When a party having been overruled on demurrer pleaded over, he cannot, if declaration set forth a good cause of action, afterwards alledge error in the judgment on such demurrer.
Herbert v. Kyle, 1 S. & P. 286. 24. If a motion be made to the court in such indefinite terms, as not with reasonable certainty point out the matter objected to, it is not error to overrule it, though such matter if properly presented might have been available.
Glover v. Whittings, 2 S. & P. 28. 25. It is not competent for a court of law to dismiss a suit and enter up judgment for costs against a plaintiff upon the ground that the case had been perpetually enjoined—if the plaintiff does not discontinue, it becomes
destroyed of itself—and the proper practice would seem to be, to order the matte spread upon the record where it would remain.
Rogers f. sons v. Smiley & Griffin, 2 S. & P. 49. 26. When a declaration in a suit has been once passed upon by the court and determined good, it will not be again received when the case is brought up a secoud time, although a declaration of similar character in a different case might be adjudged defective. Burgess & Davis v. Sugg, 2 S. & P. 341.
27. When an additional plea is filed by leave of the court after a demurrer to several previous pleas is sustained, the filing of such additional plea will not be considered as an abandonment of the one first filed, no entry appearing on the record to justify such supposition.
Reudy, adm'x. v. Thompson, adm. 4 S. & P. 52. 28. That a replication and issue are filed in short, by consent, will not authorize the court to charge the jury against finding in favor of a defendant if they believe either of his pleas, on which issue is joined, to be true.
Richardson v. Vanner, 4 S. & P. 64. 29. To authorize the striking out of a plea, on motion, it must not only be informal and bad, but it must wholy be irrelevant. A demurrer is the proper remedy.
Carpenter v. Jeter, 4 S. & P. 326. 30. All causes not tried or otherwise disposed of, during a term, stand continued of course; and it is not necessary to have entered a special order of continuance in each.
Greer v. McGehee, 3 P. 398. 31. When a cause was continued on an agreement to try it in a special mode, at a designated term, it was held error to try it in that mode at a term subsequent to the one agreed upon.
Ibid. 32. Entitling the declaration as of.a term subsequent to that to which the writ is returnable, is not in this State a defect available in error.
Chandler v, Halloway, 4 P. 17. 33. Pleas filed in a case in short, by consent must be such as contain substance-form only being waived by such mode of pleading.
Gayle v. Randle, 4 P. 232. 34. It is not sufficient merely to object to testimony introduced on a trial in order to render its admission available in error. Exception in such case should be taken to the opinion of the court, overruling the objection.
Bank of the State v. Dade et al. 4 P. 252. 35. A plaintiff does not lose the right to open
and conclude the
argument of a cause, by the failure of a defendant to offer evidence.
Worsham v. Goar, 4 P. 441. 36. Where a plea is erased by drawing a pen over it, the court will, if necessary, presume that it was done by leave of the court.
Broughton et al. v. State Bank, 6 P. 48. 37. When a defendant pleads to the action, he admits a declaration and if he withdraws his plea, he admits that his defence cannot be maintained; and no presumption of law or fact can arise in his favor, nor can he také advantage of want of declaration or a defective declaration.
Wheeler et al. v. Bullard, 6 P. 352. 38. It is the duty of the court to reject evidence which is not material to the issue. But, if the court be asked to reject it for a cause to which the evidence is not obnoxious, the court may conclude that all other objections to it are waived—and, it is not the duty of the court to shape or remodel the propositions of counsel, but to respond to them as they are made, and either accept or reject them. Morrison et ux. v. Wright, 7 P. 67,
39. Decisions upon questions of practice will rarely be disturbed by the court.
St. John v. O'Connel, 7 P. 466. 40. That a party has split up his suit into several actions, so as to reduce them below $20, and thus get the advantage of his own oath, must be taken