Bryant v. J. & T. Simpson

3 Stew. 339 | Ala. | 1831

B37 JUDGE TAYLOR.

Several matters are assigned as error in this cause, some of which relate to the declaration, and others to the proceedings in the Court below. It is insisted, that the declaration does not shew a cause of action with sufficient certainty. The declaration is founded on a sealed instrument, of which it gives the following description: ‘‘Said defendant, on the 25th day of Juty, ¡824, at, to wit: in the county aforesaid, made his certain writing, obligatory of that date, sealed with his seal, and to the Court now here shewn, whereby he promised and bound himself, and covenanted to and with said John Simpson and company, to pay them, on or before the first day of January, 1825, the amount of a note of hand under seal, given by him, said defendant, to George F. Huber, for seventy four dollars, fifty six cents, together with costs of suit, and interest from the date of the note given to said Huber.” The declaration then proceeds to set out the breach, in terms as broad as the description. I suppose the assignment of error is made under the idea that the declaration should have contained an averment of the suit which is referred to in the instrument, on which this action is founded; the amount of the costs incurred in that suit, and of interest which was due on the note given .to It is certainly true, that no recovery could have beon had in this case, of the amount of those costs and interest, without such averment: but the declaration is sufficient to authorize a recovery of seventy four dollars, fifty six cents, and the interest which had accrued thereon, from j|ie c]ate 0f £]ie instrument sued on in this ease, to the time of the judgment. It is not necessary to cite authorities to sustain this doctrine.

It is also objected to the proceedings below, that the Court erred in empanneliing a jury to inquire the damages, when there were two pleas filed, on w hich issues were joined; and permitting plaintiffs below to take judgment bv mV (licit, although those pleas were not withdrawn. It appears from the record, that the pleas of payment, and of covenants performed, were pleaded by the defendant, and that issues were joined thereon by the plaintiffs. The next entry is as follows: ‘-came the parties by at torne}’, and the defendant saying nothing, judgment is entered by nil decit; and thereupon came a jury of good and lawful men, to inquire of damages,” &c. who were sworn to assess the damages. It sufficiently appears from this entry, that both the parties were present by counsel, when these proceedings took place, and that the defendant did not attempt to sustain his pleas. Were it necessary, we might be authorized to infer, that the defendant’s eounsei acknowledged his inability to sustain his pleas by proof, and thus virtually withdrew them; but this is not a necessary implication in support of the judgment. Suppose the case had been put to the jury on the issues, what proof would it have been incumbent upon the plaintiffs to have produced? Strictly, according to common law practice, no proof would have been necessary. Both the pleas admitted the instrument as set out in the declaration, and this admission would have been sufficient to have entitled the plaintiffs to a verdict. But according to the rule which has been adopted In our Courts, it would have devolved upon them to have produced the instrument on which they had declared, to the jury; this it was equally important for them to introduce, under the same rule, on the inquiry of damages. The defendant therefore has sustained no possible injury, and it would indeed be sacrificing justice, to satisfy the demands of form, we^e the judgments, for this reason, to be reversed. The judgment of the circuit is affirmed by a majority.

By JUDGE COLLIER.

In Thomas v. Browns,^a this Court reversed the ju:lg uent of the Circuit Court, because there was a plea in the record undisposed of, though the entry of the judgment recited, that .lite parties came by their attorneys, and that the defendant said nothing in bar of the plaintiff’s action. The case before us, bears as s'ri-Icing an analogy to that case, as it is possible for one case to bear to an it her, and the decision now made, is wholly jrreconcileable with that adjudication, and mu.d be considered as overruling it. I need not attempt to sustain the case of Thomas v. Brown, either by argument or authority. It is enough that it has been made the law of this Court, to induce a conformity of opinion by me. If it be a decision founded in error, it is better to permit com~ manís error facera k°gun, than to unsettle the law, by disregarding it. Í believe with Mr.Jenkins, that‘-variety of judgments and novelty of opinions, are the two great plagues of a commonwealth.” Th i decisions of a tribunal of the last resort, should possess permanence and stability of character. They should noL be disregirded by the Coutt that pronounced them, though they may not correctly ascertain the law, unless a greater inconvenience would result from an adherence 1o them. Next to cor-secti ess of decision, nothing is so well calculated to give character to the bench, as a regard for precedent and harmony in its judgn cuts. Hence I am of opinion, that the judgment should be reversed and the cause remanded, and with me Judges White and Peiiri" concur.

Judge Saffold, not sitting.

Judgment affirmed.

a 1 Stewart’s R. 412.