PENALTY. 1. A bill single payable at a future day, and if not then paid to bear interest from the date;-the interest from date of the note to its maturity is penalty and not recoverable, and interest will only run from the maturity. Dinsmore v. Hand, A. R. 126. 2. Under the statute 1811, the court of law relieves against the penalty, and it is unnecessary to resort to a court of equity. Ibid. 3. In a bond or note to pay a certain sum at a future day with interest from the date at 5 per cent a month, if not actually paid, the contract for the interest from date is penalty. Only interest at 8 per ct. per annum from maturity is recoverable. Collection of Cases, A. R. 209. 4. A contract to pay a certain quantity of cotton on a day stated, or in current money, rating the cotton at 20 cents per lb., is for stipulated damages, and not a penalty. Brahan & Rose v. Leroy Pope, & Willis Pope, 1 S. 135. 5. Courts of law and equity have concurrent jurisdiction on questions of penalty, and after an adjudication at law on the question, the only remaining ground for equity jurisdiction is for discovery. Ibid. 6. When a penalty has accrued to an individual under a statute, it is a vested right, and the repeal of the statute pending a writ of error will not affect it. Taylor v. Rushing, 2S. 160. est. 7. It is correct as a general rule that an obligation to pay a sum of money which may be discharged by the payment of a lesser sum, is to be considered as a penal obligation, and that the lesser sum only is recoverable with interBut when the payment is to be made at a different and distant place, it is otherwise. Plummer v. McKean & McKean, 2 S. 423. 8. A note for a sum certain, payable at a future day, which may be discharged by the payment of a lesser sum at any earlier day, is valid, and the larger sum is not penalty. Gordon v. Lewis, 2 S. 426. 9. No recovery can be had on a penal statute after its repeal. Freeman v. State, 6 P. 372. PHYSICIANS. 1. Under the proviso of 8th section, statute 1823, on the subject of physicians, a parchment, purporting to be a diploma, is not evidence of itself that the college issuing it, is a regularly constituted medical institution. Hill v. Boddie, 2 S. & P. 56. 2. In an action by physician for medical services, the defendant under non assumpsit, may avail himself of the defence that the plaintiff had not authority to act as a physician. Matthews v. Turner, 2 S. & P. 239. PLEADING. I. DECLARATION. II. PLEAS IN GENERAL. III. PLEA OF NON EST FACTUM. IV. PLEA IN ABATEMENT. V. PLEA IN BAR, Accord and SATISFACTION, and the general issue. VII. REPLICATION, REJOINDER, AND SUBSEQUENT PLEADINGs to issue. IX. PLEADINGS IN PARTICULAR ACTIONS. I. Declaration. 1. Omission to state the term of the declaration may be supplied by reference to the suit; pleading to the merits is a waiver of any advantage which might have been taken at the time of filing declaration. Judson v. Eslava, A. R. 2. 2. Count in indebitatus assumpsit, breach that "defendant has not paid said sum of money" "without stating that he has not paid any part thereof, it is sufficient if the breach be as broad as the contract declared on. Ibid. 3. Declaration by administrator on contract made with him as such, need not make profert of letters of administration. Caller v. Dade, A. R. 20. 4. Declaration against one in conformity with body of the writ, held good, though the indorsement of the writ shewed a note against two. Miller v. Snead, A. R. 27. defect 5, After a count is nol prossed it cannot be referred to to supply any in the other. Wilson v. Jackson, A. R. 73. 6. Immaterial averments will be regarded as surplusage, and will not be required to be proved. Cabiness v. Brown, A. R: 41. 7. Omission of similiter in pleading-the objection clearly not available after verdict, if at all. Ripley v. Coolidge & Bright, A. R. 11. 8. On a promissory note under statute 1811, it is not necessary to aver or prove a consideration. Allen v. Dickson, A. R. 119. 9. Omission of profert can be taken advantage of, by special demurrer only. Briggs & McClure v. Greenlee, A. R. 123. Dinsmore v. Austill, A. R. 89. 10. Declaration that a note was made at Fayetteville, viz: At Madison county, it will be intended that Fayetteville is in this State, and interest given accordingly. Garner v. Tiffany & Wyman, A. R. 167. 11. Writ in the name of two partners, declaration by one as survivor, is sufficient shewing of the death of the other. Baldwin v. Stebbins, A. R. 180. 12. Matter of defeazance need not be alledged in the declaration on a Booth & Bell v. Comeggs & Perhouse, A. R. 200. a bond. 13. In assumpsit, if written contract declared upon shows defendant's liability the "super se assumpsit" is unnecessary. Kelly v. Owen, A. R. 252. 14. Several promissory notes may be included in the same count. Dade v. Bishop, A. R. 263. 15. When the note sets out the character in which the plaintiff is to receive the money, but the declaration does not, variance not material. Bowie, adm'r. v. Foster, A. R. 264. 16. In an action against one of several joint obligors, sufficient to assign breach as to him only. Mayfield v. Allen, A. R. 274. 17. Averment of presentment at a bank and demand of payment of the cashier on a certain date when the note became due, is, especially after verdict, sufficient allegation that makers did not pay before action brought. Crenshaw v. McKennan, A. R. 295. 18. Action of assumpsit on breach of warranty, the scienter need not be averred. Wren & Glover v. Wardlaw, A. R. 363. 19. Count on indorsement insufficient, verdict and judgment sustained on the common money counts. Brahan & Parsons v. Torver, A. R. 370. 20. In assumpsit against indorser of a bond "that the defendant did not pay according to the tenor and effect of the writing," is sufficient assignment of breach. Brahan v. Debrel, 1 S. 14. 21. When damages were claimed in the writ but the amount not stated in the declaration, the defect being amendable will be considered as amended, and judgment for the damages sustained. Boddie v. Ely, 3 S. 182. 22. In declaring on a contract, it must be set out literally, or described according to its legal effect. In the latter mode a substantial variance with the proof is fatal. Davis & Co. v. Campbell, 3 S. 319. 23. When demand had been made at the late residence of the maker of of a bond, by indorsee, a day or two after he had left it-held sufficient to aver that the indorsement was duly presented to the maker thereof, in an action against indorser. Taylor v. Branch, 1 S. & P. 249. 24. Where an error is committed in an agreement, and the declaration in an action follows the agreement, evidence will not be received so as to cure the defect; but the mistake may have been amended by an averment in the declaration. Thompson v. Gray, 2 S. & P. 60. 25. When an action is brought by an administrator on a decree in another State in favor of three-held to be sufficient when the declaration stated that two of his co-administrators had been removed. Green v. Foley, 2 S. & P. 441. 26. Held not essential in such a suit to aver that the plaintiff's intestate had at the time of his death no known place of residence in this State, and that no letters of administration in this State had been sued out. Ibid. 27. Prayer of oyer on a bond, sued upon an omission to crave oyer of condition, when the evident intention of the defendant is to reach the condition, is a mere formal defect, and amendable at any other stage of the proceedings. Trustees of University of Ala. v. Winston, 5 S. & P. 17. 28. In transitory actions the court of any county where the defendant is liable to be sued, has jurisdidiction without the aid of a fictitious venire. Evans v. Irwin & Dunlap, 1 P. 390. 29. When a declaration states a recovery against defendant to have been by a "decree of the honorable of the orphan's court" of a certain county, it is sufficient description as to the style of the court doing orphan's business, and the certificate of the clerk of the county court of the proper county, that the proceedings as certified, constituted a true transcript of the settle ment, &c. " as it is of record on the minutes B― of the orphan's court in Moseley v. White, 1 P. 410. 30. When there is a clear and substantial cause of action set forth in a declaration, although it contains irrelevant and superfluous matter or duplicity, yet the defendant shall be bound to answer it. Evans v. Watrous, 2 P. 205. 31. Omission to make profert of a bond cannot be reached, since special demurrers have been abolished, and the rule of the court adopted allows defendant to crave oyer, whether profert be made or not. Botts et al. v. Bridges, judge, 4 P. 274. 32. It is not necessary that a declaration should be entitled of any particular term, or whether it had a caption, or what that caption be, so that it discloses a good cause of action. Evans v. Bridges, 4 P. 348. 33. That a declaration is entitled of a term subsequent to that which judgment is rendered is no error; provided, it appears that the declaration was in the court before judgment. Ibid. 34. Judgment by default, without a declaration is error, but if the only objection shewn by the record is the want of a declaration, the cause will be remanded, that the plaintiff may obtain leave to perfect the pleadings, and a trial be had upon the merits. Benson v. Campbell, 6 P. 455. 35. After the pleading to the issue, it is too late to raise an objection, that certain counts were not properly inserted in the declaration. Madden v. Blythe, 7 P. 258. II. Pleas in General. 36. When an immaterial plea is offered, and the plaintiff takes issue thereon, and the plea is sustained by the evidence, a court is bound regardless of the immateriality of the facts pleaded, to insruct the jury to find for defendHazzard v. Purdom, 3 P. 43. ant. 37. When a plea forms an issue, but concludes by a verification instead of to the county and a replication to the country, this irregularity will be disregarded. Mc Broom et al. v. Governor use &c. 4 P. 90. 38. Pleas filed in short, must contain the substance, as the form only is waived, by this mode of pleading; and in debt against a co-obligor of the bond, in short by consent, a plea that holder was requested to sue the principal in time, should state that the debt was lost by the failure, and that the notice was in writing. Gayle v. Randle, 4 P. 232. III. Plea of Non est Factum. 39. In an action against three as partners, the joint and several plea of non est factum, is sufficiently verified by the affidavit of one. Garner, Boyles & Baker v. J. & W. Simpson, A. R, 67. 40. A plea of non est factum admissible on affidavit, stating special facts, from which the plea is to be inferred. Adm. of Tindal v. Bright, A. R. 103. 41. Defendant may plead non est factum, and a special plea that the name and seal of one of the obligors had been cancelled without his consent. 42. It is not necessary that a replication by plaintiff, of non est factum should be verified by affidavit. Parks & Burke v. Greening, A. R. 178. 43. A defendant, when sued on a bond or note, is not compelled to plead non est factum generally, verified by an absolute affidavit; but he may elect to set forth in a special plea, the particular facts and circumstances which amount to a denial of the legal effect or validity of the bond or a denial of the authority of the agent who made it. Martin, adm. v. Dortches, 1 S. 479. 44. Administrators, as well as others, when they plead non est factum to a bond of their intestate, must verify the plea by an affidavit to the best of their knowledge and belief. Ibid. 45. A demurrer to a plea, reaches the want of an affidavit of its truth, when such affidavit is necessary. Ibid. 46. Plea by two defendants, verified by the oath of one, is a sufficient compliance with the statute requiring a denial of the execution of any writing to be by plea supported by affidavit. S. & W. Brown v. Jones, 3 P. 420. IV. Plea in Abatement. 47. Plea in abatement, entitled of same term with declaration, verified by affidavit subsequent to the term; the plea being filed before default claimed, is in time. Ellis v. Hickman, A. R. 394. 48. Plea in abatement, action brought before debt due, verified by indorsment of writ. Collier v. Crawford, A. R. 100. 49. It is a good plea, that the sheriff who executes a process is the plaintiff in interest, Mitchell v. Allen, 2 S. & P. 247. 50. Several pleas may be pleaded to the same action under the statute. Ibid. 51. A plea commencing in abatement and concluding in bar, is defective and bad on demurrer. Rogers & son v. Smiley & Griffin, 2 P. 249, 52. When issue ista ken on a defective plea, the defect will not be enquired State v. Ligon, 7 P. 167-3 P. 43. into. 53. Demurrer to plea admits the plea to be filed, and can only contest its legal sufficiency-and, semble does not reach the indorsement required by twelfth rule of practice. Though an objection it seems might be well taken to the plea if it affirmatively appears that it was not filed within the time prescribed by statute. Powers v. Bryant, adm. 7 P. 9. 54. Plea that the action was brought before debt was due-sufficiently verified by the indorsement of writ. D. & J. Collier, v. Crawford, A. R. 100. 55. When plea was filed at the same term with declaration, sufficiently verified by affidavit subsequent to the term, being filed before default claimed, it is in time. Ellis v. Hickman, A. R. 394. 56. Plea alledging that the obligation sued on was given in consideration of services not yet performed, but which shows that they were in the progress of performance,-if not verified, is demurable. Coulter v. Bell, 2 S. & P. 358. 57. Whenever the fact of the plea does not appear on the record, such plea must be verified by affidavit. Ibid. 58. "Sworn to and subscribed in open court," signed to a plea by a party pleading and attested by the clerk, is sufficiently verified without a more formal affidavit; nor is it necessary it should be signed by counsel. State v. Middleton, 5 P. 484. } |