CHAPTER XIII.

ERROR AND APPEAL ON THE PLEADINGS.

SLACUM v. POMERY.

SUPREME COURT, UNITED STATES, FEBRUARY, 1810.

[6 Cranch, 221.]

ERROR to the circuit court for the district of Columbia, sitting in Alexandria, in an action of debt (under the law of Virginia), brought by Pomery against Slacum, as endorser of a bill of exchange.

The verdict and judgment being for the plaintiff, for the whole amount demanded in the declaration, the defendant brought his writ of error.

Swann, for the plaintiff in error, contended.

That it was not averred in the declaration that the defendant had notice of the protest for non-payment And although this might have been taken advantage of in the court below in arrest of judgment, yet it was also a fatal objection upon a writ of error.

senger v. Woge, 20 Colo. Ap. 275; Adams v. Way, 32 Conn. 160; Cook v. Morris, 66 Conn. 196; Anderson v. Pollard, 62 Ga. 46; Reeves v. Jackson, 113 Ga. 182; Strouse v. Kelly, 113 Ga. 575; Flewellen v. Flewellen, 114 Ga. 403; O'Connor v. Bruckor, 117 Ga. 451; Western Co. v. Bank, 125 Ga. 489; Nollen v. Wisnen, 11 Iowa, 190; Wetmore v. Mellinger, 64 Iowa, 741; Linden v. Green, 81 Iowa, 365; Haynes v. Brown, 36 N. H. 544, 566; Potter v. Clarke, 20 N. J. 536, 540; Reynolds v. Lounsbury, 6 Hill, 534 (semble); Kelly v. Kelly, 3 Barb. 419 (but see contra Wood v. Ball, 114 N. Y. Ap. Div. 743); Stanley v. Southwood, 4 Phila. 291 (semble - but changed by statute in 1836) Accord.

See, however, Swan v. Tappan, 5 Cush. 104.

In Anderson v. Pollard, supra, Bleckley, J. said, p. 51: "The want of necessary averments in a declaration is not cause for a nonsuit; for a nonsuit, under our practice, takes place for failure to support the declaration by evidence. We demur to the evidence as insufficient, and move to nonsuit the plaintiff. When a declaration is defective, we demur to it, or move, ore tenus, to dismiss it. And this distinction in practice is matter of substance; for there is a great economy of time and expense in not waiting for the evidence to come in in order to try the sufficiency of the declaration. The object of introducing evidence is not to aid the declaration, but to prove the truth of it. A motion for a nonsuit is aimed at the evidence as compared with what the declaration is, not at the declaration as compared with what it ought to be."

In Georgia and Massachusetts after the plaintiff's evidence is in, the defendant may ask for and the judge may give a direction to the jury to find a verdict for the defendant, on the ground that the plaintiff has not proved facts sufficient to constitute a cause of action: Crew v. Hutchinson, 115 Ga. 510, 119 Ga. 142 s. c.; Harrell v. Nicholson, 119 Ga. 458; Williams Co. v. Warner, 125 Ga. 408; Hervey v. Moseley, 7 Gray, 479; Montague v. Boston works, 97 Mass. 502, 503 (semble); Scollans v. Rollins, 173 Mass., 275; Dooling v. Budget Co., 144 Mass. 258; Oulighan v. Butler, 189 Mass. 287. This doctrine is believed to be exceptional. It is opposed to the following authorities: Hazard v. Purdon, 3 Port. (Ala.) 43; Pearl v. Rawdin, 5 Day, 244; Canterbury v. Bennett, 22 Conn. 623; Power v. Mallory, 51 Conn. 432; Nollen v. Wisner, 11 Iowa, 190.

Demurrer to Evidence. On a demurrer to evidence, no objection can be made to the pleadings: Cort v. Birkbeck, Doug. 218; U. S. Bank v. Smith, 11 Wheat. 171, 173; Kelly v. Strause, 116 Ga. 872, 882. — Ed.

Youngs. There was no motion in arrest of judgment. This objection was not taken in the court below.

In our case if notice were necessary to entitle the plaintiff to a verdict, it will be presumed, after verdict, that notice was proved.

MARSHALL, Ch. J., delivered the opinion of the court as follows, viz. : There is, however, an objection taken to this declaration. It omits to allege notice of the protest; an omission which is deemed fatal. Had this error been moved in arrest of judgment, it is presumable the judgment would have been arrested; but it is not too late to allege, as error, in this court, a fault in the declaration, which ought to have prevented the rendition of a judgment in the court below.1

W. AND R. L. RUDDICK v. PATTERSON AND OTHERS. SUPREME COURt, Iowa, June 15, 1859.

[9 Iowa Reports, 103.]

WRIGHT, C. J. Judgment by default was rendered against the defendants as the makers and indorsers of a certain promissory note, The indorsers appeal and assign as error that the petitioner does not aver that they had due notice of the demand and non-payment of the note by the maker, and that taking the petition as true, therefore, it shows no cause of action against them. Held: That granting that the petition would be bad upon demurrer, the defect could not avail. when presented for the first time in this court. Davis v. Burt, et al.2 Judgment affirmed.3

1 Western Co. v. Sklar, 126 Fed. R. 295; Louisville Co. v. Williams, 113 Ala. 402; Ala. Co. v. Addler, 144 Ala. 555; Chaffin v. McFadden, 41 Ark. 42; Am. Co. v. McManus, 68 Ark. 263; Buckman v. Hatch, 139 Cal. 53; Creswell v. Woodside, 8 Colo. Ap. 514; Nylan v. Reuhard, 10 Colo. Ap. 46; Eddins v. Tweddle, 35 Fla. 107; Gorman v. County, 1 Ida. 655; Kipp v. Lichtenstein, 79 Ill. 358; Bowman v. People, 114 Ill. 474; Chicago Co. v. Clausen, 173 III. 100; Chicago Co. v. Eselin, 86 Ill. Ap. 94; Mansur v. Streight, 103 Ind. 358; Taylor v. Johnson, 113 Ind. 164; Western Co. v. Koontz, 17 Ind. Ap. 54; Metropolitan Co. v. McCormick, 19 Ind. Ap. 49 (but objection to a substantial defect in an answer can be taken only by demurrer or by motion for judgment non obstante veredicto; Bledsoe v. Rader, 30 Ind. 354; Moreland v. Thorn, 143 Ind. 211); Fible v. Caplinger, 13 B. Mon. 464; Walters v. Chinn, 1 Met. (Ky.) 499; Chesapeake Co. v. Thieman, 96 Ky. 507; Crossen v. Hutchinson, 9 Mass. 206 (Massachusetts law changed by statute, Rev. L. ch. 193, § 4, so as to exclude a writ of error for substantial defects in pleadings, if a verdict has been rendered; Hollis v. Richardson, supra, 68); Smith v. Dennett, 15 Minn. 81; Northern Co. v. Markell, 61 Minn. 271; Slater v. Olson, 83 Minn. 35; Smith v. Burrus, 106 Mo. 94; State v. Thompson, 149 Mo. 441; Terr. v. Va. Co., 2 Mont. 96; Morse v. Swan, 2 Mont. 306; Hudelson v. First Bank, 51 Neb. 557; Kemper v. Renshaw, 58 Neb. 513; Manning v. Railroad, 122 N. Ca. 824; Toomey v. Avery Co., 20 Oh. C. C. 183; Bowen v. Emmerson, 3 Oreg. 452; Ball v. Doud, 26 Oreg. 14; Wyatt v. Henderson, 31 Oreg. 48; Byers v. Ferguson, 41 Oreg. 77, 81 (semble); Porter v. Booth, 1 S. Dak. 558; Johnson v. Burnside, 3 S. Dak. 230; Shelton v. Bruce, 9 Yerg. 24; Tumley v. Clarksville R. R., 2 Colo. 327; Holt v. Pearson, 12 Utah, 63; Bishop v. Averill, 17 Wash. 209 Accord. Ed.

2 7 Iowa, 58.

Davis v. Burt, 7 Iowa, 56; Williams v. Sill, 12 Iowa, 511; McCoy v. Cornell, 40 Iowa, 457; Clews v. Traer, 57 Iowa, 459, 467; Weis v. Morris, 102 Iowa, 327; Midlothian Co. v. Dahlby, 108 Wis. 195.

In Massachusetts a writ of error is not allowed for causes existing before verdict, in any case in which a verdict has been rendered. Hollis v. Richardson, 13 Gray, 392, 393. — ED.

274 COMMERCIAL INVEST. CO. v. BANK OF COMMERCE. [CHAP. XIII.

GEORGE B. STARBIRD v. JAMES EATON.

SUPREME JUDICIAL COURT, MAINE, 1856.

[42 Maine Reports, 569.]

APPLETON, J.1—The plaintiff in error, being duly summoned, was defaulted in the original action, the judgment in which he now seeks to reverse.

It is objected that the notes upon which judgment was rendered, do not correspond with those set forth in the declaration. The purpose of a writ of error is to enable the justices of this court to examine the record upon which a judgment has been rendered in this or in an inferior court, and, on such examination, to affirm or reverse the adjudication. The court will not take notice of a note described in the assignment of errors, as filed in the case, any more than a deposition or other proof offered to sustain the declaration. Storer v. White.' The papers presented to a common law court, and acted upon as evidence, are no part of the record. Kirby v. Wood. When the error is one of law, there is nothing upon which the court can act except the transcript of the record. Valentine v. Norton."

Exceptions overruled.

COMMERCIAL INVESTMENT CO. v. THE NATIONAL BANK OF COMMERCE.

SUPREME COURT, Washington, DECEMBER, 1904.

[36 Washington Reports, 287.]

APPEAL from a judgment of the superior court for Pierce county, Snell, J., entered March 19, 1903, upon granting defendant's motion for judgment on the pleadings, in an action for damages for breach of a covenant to assume mortgages, and save the plaintiff from suits thereon.

FULLERTON, C. J. It is said, however, that the complaint contains 1 Only a part of the opinion of the court is given. - ED. 27 Mass. 448.

8 16 Maine, 81.

4 Macheca v. U. S., 26 Fed. R. 845; Layton v. Poor, 6 Houst. 13; Ex parte v. Powell, 20 Fla. 806; McClay v. Norris, 9 Ill. 370; Lewiston Co. v. Merrill, 78 Me. 107; State v. Williams, 5 Md. 82; Green v. State, 59 Md. 123; Miller v. Rosier, 31 Mich. 475; Claggett v. Simes, 31 N. H. 22; Collins v. Wallace, 55 N. H. 437; Loper v. Somers, 71 N. J. 657; People v. Allen, 43 N. Y. 28; Bain v. Funk, 61 Pa. 185 Accord.

In New York a judgment will not be reversed for a substantial error in the pleadings, if evidence admitted without objection disclosed a cause of action or defence: Knapp v. Simon, 96 N. Y. 284; Hinds v. Kellogg, 37 N. Y. St. Rep. 356 (affirmed 133 N. Y. 536); Bossert v. Poerschke, 51 N. Y. Ap. Div. 381, 384 (semble — rule not applied because evidence was admitted against objection). - ED.

6 30 Maine, 194.

Only a part of the opinion of the court is given.-ED.

averments sufficient to show a right to nominal damages, and that the judgment must be reversed because the trial court did not permit a recovery for nominal damages. But we have held that this court will not, where the sole object of the action is the recovery of damages, reverse a judgment because the court erroneously failed to direct judgment for nominal damages. Johnson v. Cook. Whether the plaintiff does, or does not, recover, affects only the question of costs, and the appellate court will not entertain an appeal for the sole purpose of determining who is entitled to costs in the court below. The judgment is affirmed."

JESSE v. CATER.

SUPREME COUrt, Alabama, JANUARY TERM, 1856.

[28 Alabama Reports, 475.]

To an action upon an injunction bond, the defendants filed two special pleas, to each of which a demurrer was interposed, but overruled.

The overruling of the demurrers to the pleas is now assigned for

error.

WALKER, J. The appellant, who was the plaintiff below, demurred separately to the defendants' two pleas. The demurrers were overruled; and, the plaintiff declining to further plead, a judgment was rendered for the defendant. If either of the pleas, the demurrers to which were overruled, averred facts constituting a defence to the action, the judgment of the court below must be affirmed. Both the pleas go to the entire action; and therefore the plaintiff has not been prejudiced by the erroneous overruling the demurrer to one of the pleas, if the other was good. See the cases of Firemen's Ins. Co. v. Cochran & Co.; and The State v. Brantley."

4

1 24 Wash. 474, 64 Pac. 729.

The judgment of the circuit court is affirmed.

2 Peck v. Tribune Co., 154 Fed. R. 330; Platter v. Seymour, 86 Ind. 323; Rhine v. Morris, 96 Ind. 81; Coffin v. State, 144 Ind. 578; McConihe v. N. Y. Co., 20 N. Y. 495; Johnson v. Cook, 24 Wash. 474 Accord. — ED.

The statement of the case has been much condensed. - ED. 4 27 Ala. 228.

5 27 Ala. 44.

6 Clearwater v. Meredith, 1 Wall. 25; Packett v. Pope, 3 Ala. 552; State v. Brantley, 27 Ala. 44; Firemen's Co. v. Cochran, 27 Ala. 228; Brown v. Commercial Co., 86 Ala. 189, 195; Zinkle v. Jones, 129 Ala. 444; Andrews v. Hall, 132 Ala. 320 (overruling a dictum in Breitling v. Marx, 123 Ala. 222, 226); Jordan v. Newborn, 8 Ark. 502; Stevens v. McCall, Smith, Ind. 257; Swan v. Rary, 2 Blackf. 291; Huston v. McPherson, 8 Blackf. 562; Gorham v. Reeves, 1 Ind. 421; Burton v. Johnson, 2 Ind. 339; Board v. Walker, 71 Ob. 169 Accord.

Similarly judgment will not be reversed for error in sustaining a demurrer to a special plea, if the facts of that plea might be introduced under a general denial which was also pleaded. Evansville Co. v. Baum, 26 Ind. 70; Wolf v. Schofield, 38 Ind. 175; Trogdon v. Deckard, 45 Ind. 572. — ED.

CHAPTER XIV.

PLEADINGS IN PARTICULAR ACTIONS.

SECTION I.

Specialty and Simple Contracts.

NOTE.

1385.

[Bellewe, 111.1]

WADHAM. In debt on a contract the plaintiff shall show in his count for what consideration (cause) the defendant became his debtor. Otherwise in debt upon an obligation, for the obligation is a contract in itself."

1 Also reported Bellewe, Annuitie, 32, Fitz. Ab. Annuitie, pl. 54. — ED. 2 Judge of the Common Pleas in 1388. — ED.

"The declaration is in the usual form in an action of covenant, and by setting out the bond upon which suit is brought, sufficient is shown to entitle the plaintiff to his action. No statement of consideration is necessary." Per Wilson, C. J., in Buckmaster v. Grundy, 2 Ill. 310, 312. See to the same effect, Y. B. 45 Ed. III f. 24, pl. 30; Fitz. Ab. Dett. 166 (19 Rich. II); Fellowes v. Taylor, 7 T. R. 475 (semble); McCarty v. Beach, 10 Cal. 461; Wills v. Kempt, 17 Cal. 98; Moore v. Waddle, 34 Cal. 145; Chicago Co. v. Haven, 195 Ill. 474; Towsley v. Olds, 6 Iowa, 526; State v. Wright, 37 Iowa, 522; Northern Co. v. Oswald, 18 Kan. 336 (bill for specific performance); Bowyer v. Sowles, 109 Mich. 481; Robson v. Dayton, 111 Mich. 440; Benza v. Briggs, 2 Miss. 195; Montgomery Co. v. Auchley, 92 Mo. 126; Harrison v. Vreeland, 38 N. J. 366; Parker v. Crane, 6 Wend. 647, 648; Bush v. Stevens, 24 Wend. 256; Howie v. Kashowitz, 83 N. Y. Ap. Div. 295; Grubb v. Willis, 11 S. & R. 107; Angier v. Howard, 94 N. Ca. 27; Cock v. Taylor, 2 Overt. (Tenn.) 49, 52; Jones v. Thomas, 21 Gratt. 96; Considine v. Gallagher, 31 Wash. 669. See further 9 Harv. L. Rev. 49.-ED.