20 Ky. 451 | Ky. Ct. App. | 1827
delivered the Opinion of the Court.
The damages in the writ, and declaration in covenant, are laid at $150; the verdict and judgment fertile damages, exceed those laid in the writ and declaration. For this the judgment must be reversed. Were this all that is complained of, we would correct the error, by directing the court below, to render judgment for the damages laid in the writ and declaration.
But the pleadings may well create a doubts whether, at the impetration of the writ, any cause of action existed.
Whitlock, as surviving administrator of Radford, declared in covenant upon a writing for the hire of a negro boy, to be clothed and returned, and for the payment of one hundred and twenty-four dollars, on or before, the 25th Dec. next ensuing the date of the covenant. The covenant bears no date, as it would seem from the declaration, or a false date, and therefore the time when the money fell due, is not to be ascertained from the face of the covenant; but lies in averment. The plan tiff in setting out when the covenant was made, leaves a blank, and so in stating when it bears date, but afterwards avers it executed on the first day of January, 1819.
The defendant tendered a pica, in due time, that the covenant was not executed on the first of January, 1819, and that it was not due and payable at the commencement of the suit, and concludes in bar.
The plaintiff objected to the filing of this plea, because it was not sworn to the court sustained the objection.
The plaintiff declares upon the covenant as made by Benjamin Suttles and Joseph Sublett, to Thomas
The rejected plea, was not a plea of non est factum — and for that cause no oath of verification could have been required. It was not pleaded in abatement, and therefore no oath was required. The cause of rejection was not proper. But if the matter pleaded in bar was in abatement, or insufficient, yet being rejected, a wrong reason assigned by the court for a right judgment, would be no cause of reversal. If the covenant was not payable when the suit was brought, and a wrong date had been avered in the declaration, so as to wake it payable before suit, when the true date would have made it payable after suit brought, the defendant had aright to shew that matter, in bar of that action. In Owen vs. Butler, (1 Ld. Raym. 345;—same case in Comb. 483,) it was adjudged that a plea, to a bond with a condition to pay three several sums, at three several days, that the. defendant had paid the money due at the two first days, and that the third day of payment is not yet come, was properly a plea in bap and not in abatement, A plea in abatement sup
The plea is not pleaded in an apt and formal manner, neither is the declaration wholly faultless. In exercising a discretion as to the order to be made on the reversal of the cause for excess of damages, we think it most proper to send the cause back, with leave to the plaintiff and defendant to amend their pleadings, if they or either shall ask leave.
Judgment reversed and cause remanded with leave to either party to amend, and for farther proceedings not inconsistent with this opinion.
Plaintiffs in this court, to recover their costs.