omission to give such notice, that the sum mentioned in the agreement, could not be recovered as stipulated damages for such omission, and if the party was liable for the payment of such damages, it could be enforced only for not performing the award when made. And the court inclined to the opinion, that even in an action upon the agreement, for non-performance of the award, the sum specified in the submission would be considered as a penalty, and not as liquidated damages. In these cases the specified sum will not be held as liquidated damages, except where it is manifest the parties so intended, and where it is difficult if not impossible, from the circumstances of the case, for a jury to arrive at a satisfactory conclusion as to the amount of damages to be allowed. 22 Wen. 163. Ante, p. 1001. Interest is recoverable in an action of debt on a judgment for costs in a suit for assault and battery. And it seems, that it is recoverable in an action of debt on judgment, whether the original demand carried interest or not. 22 Wen. 157. Ante, pp. 1007, 1010. In an action on the case by a father for the seduction of his daughter, he may show, in aggravation of damages, any circumstances, being the natural consequences of the guilty act, although they did not transpire till after suit brought. 21 Wen. 79. Ante, p. 1028. A party sued as a public officer, is entitled to double costs; and if the fact of his being so sued, does not sufficiently ap pear from the pleadings, the justice may, before rendering judgment, enquire, in the presence of the parties, into the defendant's right to such costs. 19 Wen. 351. The court in this case said, that although the statute prohibits a justice from giving judgment for more than five dollars costs, except where fees for foreign witnesses are charged, yet he may, where he is authorized to give judgment for double costs, add one half to the taxed bill, although the aggregate may in that case, exceed five dollars. Vid. id. 352. Our books of reports abound with cases relating to the rules of pleading. A few of the most important have been cited under their appropriate heads. As this branch of the law is of minor importance, owing to the liberality with which pleadings in justices' courts are viewed, and as, moreover, the rules of pleading are uniform, and have undergone little or no alteration for a great number of years, it was thought advisable to pass over those parts of the treatise which relate to this subject, without making any considerable additions. For the same reasons, we omit to notice here, any of the recent cases belonging to this head. defect in process or return, to be taken advantage of by motion, 671, 2 of misnomer, 583, 585, 671. to the disability of the person of the defendant, 670. a married woman, 670. to the action of the process, 671. that defendant commenced first action, in which plaintiff ought to set off his claim, 671. when this plea is not available, 671, 2. another suit pending, 671, 2. writ of error pending, 672. certiorari brought, 672. of the form and requisites of a plea in abatement, 672, 3. beginning and conclusion of a plea in abatement, 673 to 677. when and how to be pleaded, 673, 675. cannot be amended, 675, 677. need not be specially demurred to, 675, 677. when to be pleaded in person, or by attorney, 675. order in which they must be pleaded, 677. ABATEMENT-continued. when they must be verified by affidavit, 677. form of affidavit of verification, 678. forms of pleas to the process and declaration, 678, &c. non-joinder of tenant in common, in trespass to goods or chattels, 678. action may be abated as to part, though good as to residue, 678, 9. form of plea of non-joinder to part, and general issue to residue, 679, 680. same plea in trover, 680. non-joinder of tenant in common, in trespass on lands, 681. whether this plea can be tried by a justice, 681. in assumpsit, 681. non-joinder of a joint promissor, 681. remarks, 681. non-joinder as to part, and general issue to residue, 681, 2. non-joinder, and statute of limitations, 682 in action on sealed instrument, how non-joinder to be pleaded, 682, 3 of the replication to a plea in abatement, 690. (Vid. Replication.) ACCEPTANCE, (Vid. Bills of Exchange.) of bill of exchange, necessary to bind drawee, 157. form of, id. must be in writing, signed by acceptor or lawful agent, id. should be on the bill, id. when it binds, if not on the bill, 157, 8. unconditional promise in writing to accept before bill drawn, when construed drawee refusing to return bill in twenty-four hours, considered as accepting ACCEPTANCE-continued. if not dated, day of acceptance may be shown by parol, 158. when invalid, how far vitiates bill, 167. presentment for, when must be made, 192, 194. (Vid. Presentment.) when qualified or limited, notice should be given as for non-acceptance, 201. notice of non-acceptance, where drawee has no effects, 198 to 201. in other cases, governed by same rules as notice of non-payment, 201 (Vid. supra protest, does not excuse demand of payment of drawee, 208. his liability, 158. how affected by alteration of bill or note, 164, 5. how affected by invalid endorsement, 167. bound by condition annexed to bill, before acceptance, 172. of a bill endorsed for part, may be liable to two actions, 173. when liable without demand, 187. demand at particular time and place, not necessary to charge acceptor, 187, 8. no defence by, that time has been given to other parties, 188. how may be discharged, 188, 9. liable for interest, 189, 190. (Vid. Interest.) not liable for costs incurred by endorser, by reason of non-payment, 190. nor for costs incurred by drawer, id. of a forged bill, bound to pay it, id. demand of, how and when made, 192 to 197. competent witness to prove want of effects, 200. ACCIDENT, bailee not liable for inevitable accident, 57. (Vid. Bailee.) case will not lie for injury resulting from unavoidable accident, 306. (Vid. ACCOMMODATION, bills, notes, or endorsements, what are, 176. want of consideration, no defence by accommodation endorser, 175. what is an accord, 786. without satisfaction, is no bar, 787, 8. ACCORD AND SATISFACTION, what amounts to one, 786. plea of, 786. accord without satisfaction, is no bar, 787, 8. ACCOUNT, ACTION OF, justice has no jurisdiction of, 91. (Vid. Actions.) ACCOUNT BOOKS, how far evidence in favor of party keeping them, 955. (Vid. Books of ACCOUNT STATED, assumpsit on, 65. when it lies, 234, 5. how to declare on, 234. (Vid. Declaration.) is in nature of a new promise, 236. ACCOUNTS, when they draw interest, 1001, 2, 253. of deeds, by whom may be taken, 930. may be by justice, 930, 1115. forms of certificates of, 931 to 934. clerk's certificate to annex to, when necessary and form of, 935. ACTIONS, what actions cognizable before a justice, 26. debt, and when it lies, 26, 37. (Vid. Debt.) covenant, and when it lies, 26, 42. (Vid. Covenant.) trespass on the case, and when it lies, 26, 27. (Vid. Trespass on the Case.) qui tam actions, what, 41. popular actions, 41. assumpsit, 46. (Vid. Assumpsit, Action of. Contract.) by and against and between partners, 88, 89, 91. (Vid. Partners.) by officers, for money in the hands of their predecessors, 94, 5. (Vid. against overseers of poor, for maintenance of paupers, 95, 6. (Vid. Over- for goods sold and delivered, 98, 9. (Vid. Goods sold and delivered.) for work, labor and services, 108. (Vid. Work, Labor and Services.) of joinder of, and consequences of misjoinder, 560, 4. (Vid. Joinder of of election of, 564 to 568. (Vid. Election of Actions.) plaintiff cannot split up one cause of action and bring several suits, 567, may be abated as to part, and good as to residue, 679. when former action a bar to second suit for same matter, 724 to 731. limitation of. (Vid. Limitations, Statute of.) on adjournment bonds, when may be brought, 854, 5. ADJOURNMENTS, provisions of statute in regard to, 836, 8. when and for what time may be granted, 838. upon return of summons or attachment, or upon joining issue without pro- when may be upon justice's own motion, and for how long, 838, 9. |