Jarrett v. Nickell

4 W. Va. 276 | W. Va. | 1870

Brown, President.

This is an action of debt on two bonds; the declaration contained two counts, the first on the larger bond, the second on the smaller, to which there was a special plea in bar. The plea purported to make defence to the whole action, but the matter of defence went only to the consideration of the larger bond mentioned in the first count. In this the plea was clearly bad, but judgment was entered, by consent of the parties, for the amount of the smaller bond, on the second count. The defect in the plea above mentioned, was cured by the judgment entered by consent, and left the plea to be tested" as to the matter of defence, on the sufficiency of the facts stated in it. There was a replication to the plea, but subsequently withdrawn by leave of the court, and thereupon the plaintiff objected to the plea as not sufficient in law, but the objection was overruled, and the plaintiff excepted; the objection was properly overruled, because it was too late to object and the plaintiff should have demurred to" the plea, if he sought to test its validity, after it had been filed. The plaintiff then replied specially to the plea, and thereby waived his objection to its sufficiency, and the defendant demurred to the replication. And these pleadings raised the question as to the legality of the bond dated May 23d, 1866, the consideration of which is as follows: On the 20th of October, 1863, the defendant, being indebted to the plaintiff, in so much of the currency or money of the late so-called confederacy as purported to be of the value, and to the amount of 8,602 dollars, to secure the payment of which, he executed to the plaintiff his bond of that date for that amount. And on the 23d of May, 1866, lie executed to the plaintiff eight bonds, of which the bond in the first count of the declaration was one, in lieu of the bond first mentioned in the compromise settlement of the difficulties and disputes between the plaintiff and defendant, in relation to the same. The whole transaction occurred in the county of Monroe, between parties resident there. The compromise under such circumstances was valid, and upon sufficient consideration, and is fully sustained by the authorities cited in the argument.

The replication, therefore, was a good answer to the plea, and the demurrer to the replication should have been overruled,and the judgment entered for the plain tiff upon the first count, also, of the declaration. I am of opinion, therefore, to reverse the judgment of the circuit court of Monroe, with costs to the plaintiff in error, and this court, proceeding to enter such judgment as the circuit court ought to have entered, should enter judgment for the plaintiff for the debt in the first count in the declaration mentioned, and for his costs in the court below.

Judges Maxwell and Berkshire concurred in reversing the judgment and entering judgment for the plaintiff in error. But they were of opinion that the plea and replication were each bad, and that the demurrer to the replication should have been sustained, the plea held bad, and a judgment entered on the declaration for the plaintiff.

Judgment reversed.