Kleckley v. Leyden
63 Ga. 215
Ga.
1879
Check Treatment
Bleckley, Justice.

1. The demurrer to the plea admitted the facts alleged in the latter to be true. By fair intendment, one of these facts was that the fertilizer was not in fact branded or marked. The inspector’s brand was the restricted guaranty, or the sign or emblem of it, which the contract contemplated, and if there was no brand, there was no delivery of the restricted guaranty. The consequence would be that the parties would be remitted to the general warranty implied by law. 61 Ga., 392.

Moreover, it is to be observed that at the date of this contract it was a penal offense to sell a fertilizer not duly branded or marked ; and this being so, no such sale could be the basis of a legal contract. We are not sure that illegality, as a distinct substantive defense, was sufficiently pleaded, but with a proper plea of that nature, and it established, there could be no recovery.

2. Evidence was admissible to show what was a reasonable allowance for counsel fees. The note stipulated for the payment of counsel fees, and a copy of the note in full was annexed to the summons. Suit by summons is rather by way of hint or suggestion, than by way of full and ex*217plicit declaration. The debtor having promised to pay counsel fees in case of suit, could not be much surprised, after being refreshed by service of a copy of his note containing the promise. He might reasonably expect that the plaintiff would proceed for all to which the contract entitled him, though no express claim for counsel fees was made in the summons.

3. After you have accepted your jury, and they have rendered their verdict against you, it is too late to inquire from what list they were taken, or from' what box their names were drawn. This seems so obvious that we can almost wonder that it has been made a question.

For error in striking the plea, judgment reversed.