Hoard v. Little, 7 Mich. 468

Hoard v. Little

7 Mich. 468 | Mich. | 1859

Lead Opinion

Manning J.:

A reversal of the judgment is asked on two grounds:

1st. That the declaration, which is in assumpsit on the common counts, after stating the several causes of action, does not allege an express promise; or, in other words, omits to state what the law implies. The objection would be good on a special demurrer, but it is cured by the judgment.— Comp. B. §4419.

2d. That the note, a copy of which was given at the foot of the declaration, was received as evidence, without proof of the maker’s signature. The reason for this objection is stated in such ambiguous terms, in the bill of exceptions, as to leave us in doubt on what the objection is based; and we should on that account be justified in refusing to consider it at all. It is the duty of a party objecting to the admission of evidence, to state the ground of his objection with perspicuity, that the court and the opposing party may not be misled by it. If the ground *471of the objection is that there is no special count on the note, the objection was not well taken, as the note was admissible as evidence under the common counts. Or if it is that the case did not come within the seventy-ninth rule of the circuit courts, dispensing with the proof of signatures in actions on written instruments, as therein provided, the party was under a mistake as to the meaning of that rule. In all actions on bills of exchange and promissory notes, the plaintiff may declare on the money counts only, and give the bill or note in evidence under them when a copy of the bill or note has been served with the declaration.— Comp. L. §4161. And in case of judgment by default, the clerk may ássess the damages as though the note or bill had been specially declared on.— Oomp. L. §4425. The rule was adopted with reference to the statute, and its language is broad enough, and not restricted to instruments specially counted on. There was the same proof of service of a copy of the note as of the declaration. The judgment is affirmed with costs.

Martin Ch. J. and Campbell J. concurred.

Concurrence Opinion

Oheistiancy J.:

I concur in the foregoing opinion, but I understand the second objection alluded to by my brother Manning as intended to insist that no consideration is averred in the declaration to support a promise. But the objection is not sustained by the fact. The consideration is sufficiently set forth, but no promise; and the latter defect is cured by the verdict and the statute.

Judgment affirmed.