English v. Scott

1 Mo. 408 | Mo. | 1823

M’Girk, C. J.,

delivered the opinion of the Court.

This was an action of debt, verdict and judgment for the plaintiff. The declaration sets out the obligation, and shows it was to he payable on an event happening, to wit: that there should he a verdict or decision, in a certain cause, in favor of English. It shows, also, that there was a decision of the suit in favor of English. To this declaration there are two pleas:

First. That there is no such record of decision as alledged. This plea was found for the plaintiff.

Second. Plea is, that there was no such decision in the case as alledged by the declaration ; this plea concludes to the country, and is demurred to for that reason. The question is, should this plea have concluded to the countiy, or with a verification to the Court ? In this case, the declaration is well enough, and it rightly shows the event had happened; therefore, the debt accrued. Here, is a necessary special fact alledged affirmatively. What was the proper tribunal to judge of the existence of the fact? The answer is, the jury. The conclusion to the country was right, and the plea good.- For what purpose should this plea have concluded to the Court? The law is, that where there is a direct affirmative, and a negative, there is an issue to the country; and the matter should he referred to the jury, and not to the Court. Matters of law should he referred to the Court. Whether a decision had taken place or not, involved no matter of law. This is not like the case of pleading general performance in covenant. The law of pleading in covenant, and the manner of making the issue, is an exception to the general rule, and gives no light on this subject. Here, the event has happened, as the declaration alledges: the plea denies it, and that is sufficient. If this plea had concluded with a verification, what advantage could the plaintiff had thereby? He could only have reiterated the fact, which he had before asserted; and this would have done no good, for that was well stated before : so that he has lost no reply, which would have been necessary to make out his title. This is a plain matter.

Let the judgment be reversed, with costs. The cause is remanded, with instructions to the Circuit Court, to overrule the demurrer, and to proceed with the cause to trial, &c. The Circuit Court is directed to let the defendant in the Court below withdraw one of the pleas, and if he will not do so, the Court will order one to be sticken out, because they substantially put in issue the same thing, but refer themselves to different tribunals ; so that the Court might find one way, and the jury another way; and then the Court could not tell who should have judgment.