Driver v. Spence

3 Ala. 98 | Ala. | 1841

COLLIER, C. J.

By the act of 1812, “concerning the assignment of bonds, notes, &c. and for other purposes,” it is enacted that in ail actions founded on any writing, ascertaining the plaintiffs .demand, or sum sued for, if judgment by default, nil dicil, or by non sum informants, or on demurer be entered therein, the Court where the same action shall be pending, shall and may lawfully enter judgment for the debt, or demand, and interest thereon, to be calculated by the clerk of such Court, up to the .time of rendering judgment, without the intervention of a jury toinquire of the damages, and award execution thereon as in other cases.” Under the influence of this statute, it is insisted, that the judgment in the case at bar, is entirely regular ; that the amount of the obligors, indebtedness was ascertained by their contract, and the intervention of a jury was therefore .unnecessary.

In the justness of this argument, we cannot acquiesce. The obligors do not stipulate to pay any definite sum, but merely undertake to pay eight dollars per acre, for a piece of cleared land, which they suppose contains ten acres,- more or less. The terms employed, clearly indicate that the parties did not intend to fix, with precision, the sum to be paid or received, but to leave it to be ascertained, what was the quantity of land rented.

The recital- in the contract, that the land was supposed to contain ten acres, would be evidence to go to the jury, and in the absence of more satisfactory proof, should be regarded as prima facie, sufficient to show that such was the true number,

In Norwood & Chambers v. Riddle, (9 Porter’s Rep. 425) a writ issued against two defendants. As to Norwood there was an acknowledgment of service, subscribed with his name; then, on the same day, the process went into the hands of tho sheriff, who executed it ,on the other defendant, without saying any thing as .to service on, or acknowledgment by Norwood. The Court 'held that tho genuineness of Norwood’s signature, should have been shown, or his acknowledgment proved in some other manner. This is a decision precisely adapted to the facts of this case, and conclusive to show that the judgment by default, was improperly rendered against Shelly.

The judgment upon both the grounds considered, must be reversed and the cause remanded.