author: Lacy, J., Dickinson, J.,

text:
    Sumner against Ford & Co.
    Error to Chicot Circuit Court.

    In an action against the maker of a promissory note, or the acceptor of a hill of ex. change, made payable at a particular place,•je.is not necessary to aver or prove presentment or demand at that place. it*

    But the place at which the note or bill is to be paid, must be stated in the declaration, by way of description; and if not stated, the declaration is bad on demurrer.
    A demurrer to a declaration is joint and several by our practice; and if there be one bad count and one good one, it should be sustained as to one, and overruled as to the other.
    A declaration on a note payable in future, with interest from date, must aver the nonpayment of such interest, or it is bad on demurrer; and a judgment on such declaration, for ten per cent, interest, is bad, as being for too much.
    This was an action of debt, by Ford & Co., against Sumner. The declaration, in its commencement, demanded the sum of $571 86, and contained two counts, one setting out a note due thirty days after date, for $571 86, payable at the plaintiff’s counting room in New-Orleans, with interest from date; the second, a note for the same amount, due and dated like the former, with interest from date, but saying nothing as to the place of payment. The breach negatived the payment of the principal of each note, without saying any thing as to the interest. The defendant craved oyer, and it was granted, by filing a note corresponding with the one described in the first count, which was incorporated by the defendant in a demurrer for variance and insufficiency of the breach. The demurrer was overruled, and judgment went upon it.
    Trapnai/l and Cocke, for plaintiff in error:
    The breach of the contract, being being essential to the cause of action, must in all cases be stated in the declaration. It should be asigned in the words of the contract, either negatively or affirmatively, or in words which are co-extensive with the import and effect of it. 1st Chitty, 365. The contract declared upon in this case, contains two stipulations — one for the payment of a certain sum at a future day, and one for the payment of interest upon that sum from the date of the contract. The breach assigned alleges the non-peribrmance of only one of those stipulations, and consequently is not co-extensive with the contract. The Court below evidently erred in overruling the demurrer and giving judgment for the interest, when there was no averment in the declaration that interest had not been paid.
    Pike, Contra:

    The only question in this case is, whether, in a suit upon a note due at a future day, with interest from date, at no special rate, the non-payment of the interest must be averred in the breach.
    The argument of the plaintiff in error assumes the form of a syllogism. Interest, says he, accrues on this contract, not ex vi legis, but ex vi contractus: the breach must be co-extensive with the contract; therefore, it must negative the payment of interest as well as principal.
    This is also the reasoning of the Court in the case of Clary & Webb vs. Morehouse. But, first, we do not regard this case and that as parallel; and secondly, after a careful and patient examination of the argument of the Court in that case, and much reflection upon it, we have not been able to divest our minds of the impression that the conclusions arrived at therein are not warranted by strict law. We therefore ask the indulgence of the Court, while we submit whether that case is sound law, and whether, if so, it must govern the present.
    The history of the law concerning interest has been very ably investigated by Senator Spencer, in Rensselaer Glass Factory vs. Reid, 5 Cowen, 587. He says: “It seems to be the better opinion (Hawkins, book 1, ch. 82,) that by the ancient common law, it was absolutely unlawful to take any kind of interest, or usury, as it was then called, for money. In an anonymous case, in Hardress, (Hard. 420,) Lord Hale is reported to have said, that “Jewish usury was prohibited at common law, being 40 per cent, and more, but no other.” He then goes on to show, from Hume, the the statute of 37 Henry 8, chap. 9, passed in 1546, fixed the interest of money at ten per cent., the first legal interest known in England. This statute, and all others passed in England on the subject, are negative; prohibiting of interest being taken above a certain rate; hone of them are affirmative, they do not declare in what cases interest shall be taken; much less do they in any case require it to be paid.
    He then remarks, that it follows inevitably and irresistibly, upon the universal principle of all law, that a man cannot be made legally liable to pay interest, as such, without his own agreement to that effect. All liability must be created by law or by agreement.
    He then quotes the case of Colton vs. Bragg, 15 East., 226, in which Lord Ellenborougii said, “ Lord Mansfield sat here for upwards of thirty years, Lord Kenyon for above thirteen years, and I have now sat here for more than nine years, (a period of 52 years), and during this long course of time, no case has occurred where, upon a mere simple contract or lending, without an agreement for the payment of the principal at a certain time, or for interest to run immediately, or under special circumstances, from which a contract for interest was to be inferred, has interest been ever given.”
    Senator Spencer, therefore, lays it down as established “ beyond all question or cavil,” that the allowance of interest by the Court, as an incident to the debt, is always founded on the agreement of the parties. “ It will be seen,” he says, “ that most of the cases in England and in this country recognize the great principle, and that it is the only one upon which they can be reconciled and harmonized. It is one of plain common sense, easily applied, and which rejects all the artificial reasoning which has been sometimes employed.”
    This agreement, he says, may be expressed in writing or by words, or it may be implied — implied, first, from the custom or usage of the business; and, second, where the principal is to be paid at a specific lime, the law has always implied an agreement to make good the loss arising from a default, by the payment of interest. Robison vs. Bland, 2 Burr, 1086. “All contracts to pay,” said Lord Thurlow, “undoubtedly give a right to interest from the time when the principal ought to be paid.” 2 Bro. C. C., 3.
    So such an agreement is implied, in case of money lent, from the time it was agreed to be paid; upon an account liquidated; and in various other cases; “in all of which,” says Senator Spencer, “ the interest is considered a necessary incident to the debt, following it, as is said in one of the cases, like a shadow following its body.

      Although this was a dissenting opinion, yet, so far as we have quoted it, 'the principles laid down were in no manner controverted by the bench or the bar. And in the same ease, in the Supreme Court, 3 Cowen, 425, Sutherland, J., upon a full review of all the authorities, declared the true principle to be, that interest was a necessary incident to the principal debt, and that the Courts implied a promise to pay it, from the day the debt becomes due, if not paid. And he held that this promise was supported by the universal obligation which rests upon every man to render a just equivalent for the use or detention of that which does not belong to him. “ The value of money,” said he, “is the legal rate'of interest. That, then, shall be paid.”
    So in Selleckvs. French, 1 Conn., 32, Swiet, J., said, “Interest, by our law, is allowed on the ground of some contract, express or implied, to pay it; or as damage for the breach of some contract, or violation of some duty.” “ Interest,” said Powell, J., in Sweatland vs. Squire, 2 Salk., 623, “ is recovered by way of damages, where damages are recovered, ratione detentionis debiii; but not where damages only are recovered; for interest is not recovered occasione damnorum.”
    It is very clear, we think, from these authorities, that prior to the enactment of any statute in this country upon the subjectyinterest was recoverable solely on the ground that there was a contract or agreement, express or implied in law, to pay it, except in cases where a jury could give damages for the breach of a contract or the violation of a duty, and make a certain rate of interest the measure of those damages. Up to that time, neither the common law nor any statnte had required and made obligatory the payment of interest, but it was merely allowed — allowed upon the ground that there was a contract, either express or implied, to pay it. And no interest was recoverable by law, before the statute of Henry 8 had allowed it.
    While the law stood in this situation, the Legislature of the Louisiana Territory declared, (and they have been followed by our. Revised Code,) that creditors should be allowed to receive interest at the rate of six per centum per annum, when no other rate of interest is agreed upon, for all moneys after they become due by any instrument of the debtor in writing, on money lent, &c., and “ on all other moneys, due and to become due, for. the forbearance of payment whereof, an express promise to pay interest has been made.” And it is also further provided, that the parties may agree in writing for the payment of interest not exceeding ten per centum per annum, on money due or to become due upon any contract, whether under seal or not. Ter. Dig., 310; Rev. St., 469.
    The present is one of the cases in which, for money to become due, interest is allowed by law at six per centum per annum, because, for the forbearance of it, an express promise to pay interest has been made. The rate of the interest here is fixed by law; the day on which it commences accruing, and on which the forbearance commences, is fixed by the contract.
    It seems to us, indeed, that in all cases under our statute, interest accrues as a consequence of the joint operation of the contract and the law. This is denied by the plaintiff in error, who claims that, as interest accrues on every note, from the time it falls due, where no interest is provided for in the note, at six per centum per annum, the interest accrues in such case solely by operation of law; but as there must be an express stipulation in writing for a higher rate, or for interest before the principle is payable, consequently, the interest accrues in this case by operation of the contract alone.
    When, by written contract, money is to be paid at a day certain, the law gives six per cent, interest from that day, as a conseque,nee, or rather, as an inherent, implied part of that contract. The promise to pay being made, the law fixes the consequences, as regards interest. So when accounts are settled, and the balance ascertained, there is an implied, contract to pay, and the law gives interest as a consequence of that implied contract.
    The interest could no more accrue without the contract and promise to pay, express or implied, than without the law which makes it a consequence of that contract.
    So, when a contract is made in writing, to pay ten per cent, interest, the law gives interest at that rate, as a consequence of that contract. For it is indisputable, as we have already shown, that until the passage of the statutes allowing interest, no agreement for interest could be enforced. It is not by virtue of the contract alone, that such rate of interest can be enforced. The contract fixes the rate, but the interest accrues by law. The law gives the right to recover interest in this case, as much as in the other. In each case there must be a particular contract, express or implied; and in each ease the law gives a particular rate of interest, as a consequence of the particular contract. In one case, it is an implied part of the contract, that interest shall be paid at the rate of six per cent.; in the other, it is an express part of the contract, that interest shall be paid at ten per cent. In each case, a promise to pay interest is a part of the contract; and in each case, the law gives the interest; for without the statute, no interest could bo recovered, contract or no contract.
    If'the contract is simply to pay the principal, the law says that the debtor shall pay interest at six per cent.- Without the contract, interest would not accrue; and, consequently, it accrues as much by operation of the conlract as of the law. If the contract is to pay the principal, with eight or ten per cent, interest, the law says that the debtor shall pay with interest at that rate. Without the law, the interest could not be recovered; and, consequently,it accrues as much by operation of law as of the conlract. In either case alike, the contract established, the law fixes the consequences, and determines the result as to interest.
    In the present case, the argument is still stronger. In an ordinary note, for the mere payment of a sum of money at a given day, the law presumes that the creditor never had a right to demand the money until that day; in other words, that he did not commence to forbear until that day; and, therefore, from that day, interest begins to run, as an implied part of the contract. But if the interest is to run from date, although the interest is not payable until a given time thereafter, this is an admission, both in law and fact, that the money was due when the note was given, but the creditor had agreed to forbear until the day specified for payment, in each case, the contract merely ascertains when the forbearance actually commenced. That ascertained, the law gives interest from that day, at the legal rate.
    We are therefore inclined to the opinion, that it is far from clear, whether there is any such distinction as is claimed as to interest at the legal rate accruing ex vi legis, and interest at the conventional rate accruing ex vi contractus. We are not satisfied that interest does not, in one case equally as in the other, accrue by operation of law and the contract jointly. However this may be, we hold it to be self-evident, that whether the legal interest is to commence accruing at one time or the other, it accrues as much by operation of law in one case as in the other.
    Yet we do not imagine that, even if we are mistaken on this point, the consequences claimed by the plaintiff will result. Interest is, in everjr place, a part of the contract. Where the contract is merely to pay the principal, there is also an implied contract to pay interest on default. The law makes this a part of the contract. The law itself, existing when a contract is made, enters into forms and a part of the contract. The express stipulation to pay ten per cent, interest, is not one whit more a part of the contract, than is the implied stipulation to pay six per cent, interest. It needs no quotations to establish a principle that lies at the foundation of the law of contracts.
    Now, if the principle that “ the breach must not be narrower than the contract,” can be made to apply to this case and this question, it would be necessary, in every case, to negative the payment of the interest, whether legal or conventional.
    The truth is, that here has arisen the error which has led the plaintiff astray: — why is the pleader not required to aver non-payment of the interest in ordinary cases? Because the interest is an incident of' the principal, it is said. True; it is an incident of the principal, in this, that when the principal becomes due, interest accrues by law. But it is not so far an incident, that it necessarily follows that the interest remains unpaid because the principal does. On the contrary, payment must be first applied, to keep down the interest. It is not necessary to aver that the debtor became liable to pay interest; because interest is an incident of the debt, and he becomes liable to pay it, by operation of law. Nor is it any more necessary to make such averment of liability, when the contract is to pay a higher rate of interest, or interest from date; because the recital of the contract shows the liability, the law being judicially known to the Court. The liability is equally shown in each case. In each, it accrues as a consequence of the contract; or, if you choose, in one case the law implies a promise to pay interest, in the other there is an express promise to¡ pay. This is a mere question as to the liability. That appears as amply in one case as in the other. Still we are no nearer the result aimed at — indeed, farther from it.
    If the argument of the plaintiff, that the breach must be as wide as the contract, be valid to any extent, it must go to this — that you must negative the payment of every thing which the defendant is bound to pay, or which you claim he shall pay. The object of the breach is, to show bow much of what was due remains unpaid. Every party claiming money by a declaration, must show, not only that the dfe-fendant was liable to pay it, but that he has not paid it. By what stress of argument is it proven, that because the law says what interest a man shall pay in one case, and the contract says what interest he shall pay in another case, you need not say that the interest is unpaid in one case, and must in the other? “ The law says I may recover the interest, and therefore I need not aver that it has not been paid.” This is the whole argument, stripped of all superfluity, and reduced to its naked simplicity. Is it not a perfect non sequitur ? “ The contract says that I may recover the interest, and therefore I need not aver that it has not been paid.” Is not this equally as cogent an argument? There is, to our apprehension, no glimmering of connection between the premises and conclusion in either case. Where you aver that the principal is unpaid, does 'this involve in itself an allegation that the interest is unpaid ? Does the fact that the law implies a promise to pay interest, or that interest accrues by operation of law, show, or tend to show, that it has not been paid?
    (In one case, there is a promise to pay interest — an express promise— which may, it is said, be unpaid. So in the other, there is a legal obligation to pay interest, apparent on the declaration — an implied promise — which may be unpaid.
    It is injudicious, Chitty says, unnecessarily to narrow the breach; and no inconvenience can result from laying the breach as extensively as the contract; for the plaintiff may recover, though he only prove a part of the breach as laid. 1 Ch. Pl., 329. Now it is manifest that this language, giving it the very broadest signification which it will bear, cannot apply to a case where interest is stipulated by the contract. In England, where no interest ever was required by law to be .paid, but, as we have shown, it only accrued by agreement, express or implied, no form of a declaration can be found, where the payment of interest is negatived. The parties 'there were allowed to contract for interest, and the Courts gave interest by implication, where none was expressly contracted for. But it was given upon the ground that it had been agreed to be paid, either expressly or by implication. But there, as here, it was recovered as general damages; and the rule is universal, that damages are matter of evidence, and need not be alleged, nor need they be stated, except in a general manner. Barruso vs. Madan, 2 J. R., 149. The general prayer for damages is a demand for all interest, due either by the contract or by law, (if there could be such a distinction); and this demand implies an allegation tbat the interest is unpaid; and interest is in no case, as we apprehend the law, necessary to be claimed in any other way. It is only necessary for the breach to notice that which is the principal, and not that whieh is the incident. And if this simple principle is disregarded, confusion and difficulty must in our apprehension result.
    The Supreme Court of Alabama, in McWhorter vs. Standifer, 2 Porter, 525, declared, that as damages, or interest substituted for them, depend in part on circumstances not ip existence, to declare for it would be mere guess-work; and that whatever may be fixed at random, must be considered merely nominal.
    Interest, they said, was substituted, by the statute, for damages at common law for the detention of the debt. “ They now admit of no proof,” said the Court, “ and require no allegation, in contracts subjected to our own law. Their omission altogether, or their statement, no matter for how much or how little, is wholly nominal, formal, and of as little account in the balances of justice, as the appendage just below them, of John Doe and Richard Roe, as pledges to prosecute.”
    And there is a further consideration. If the stipulation for interest is an integral part of the contract, and must be demanded, and its payment negatived, the declaration should (if the argument be correct) contain two counts, one for the debt, and one ior the interest. Yet a separate count for interest is never necessary.
    But there is another point in this case. The rule that the breach must not be too narrow, does not apply to a case where a party covenants or contracts to pay two sums of money, or to do or perform two separate and distinct acts. If a breach is good in part, a demurrer to it must be overruled, if from the breach, as laid, a cause of action appears. Amory vs. Brodwick, 5 B. & A. 712; S. C. 1 D. & R. 361; Duffield vs. Scott, 3 T. R., 374; Orton vs. Butler, 5 B. & A., 652; Samuel vs. Judin, 6 East., 333; Powdick vs. Lyon, 11 East., 565.
    If, therefore, a party could only recover ten per cent, interest by noticing it in the breach, still this could be no objection on demurrer. The only consequence would be, that not having demanded such interest, he could only recover legal interest. And in the present case, if he could not recover interest before the note fell due, without demanding it, or at least noticing it in the breach, the only consequence would be, that, on the trial, he would lose all the interest up to the time when the note fell due. It is perfectly clear, that in any event it was no objection on demurrer; for all that can be said of it, is, that he has chosen to declare for and demand only the legal principal and interest. On this point, therefore, the demurrer was properly overruled.
    As to the other point presented by the record, which is, whether in an action against the maker of a note, or acceptor of a bill, payable at a particular place, it is necessary to aver a demand at that place, it is a question upon which, in England, conflicting opinions have been entertained.
    It was held to be necessary, in Ambrose vs. Hopwood, 2 Taun., 60; Callaghan vs. Aylett, 3 Taun., 397; Saunderson vs. Bowes, 14 East., 498; Dickinson vs. Bowes, 16 East., 108; Bowes vs. Howe, in the Exchequer Chamber, 5 Taunt., 30. It was held unnecessary, in Nichols vs. Bowes, 2 Camp., 498; Lyon vs. Sundius, 1 Camp., 423; Wild vs. Rennards, note at ib.; Trapp vs. Spearman, 3 Esp., 57; Kershaw vs. Cox, 3 Esp., 246; Marson vs. Petit, 1 Camp, 82; Fenton vs. Goundry, 13 East. 473; Saunderson vs. Judge, 2 H. Bl., 509.
    But the question is now probably at rest in England, it having been setttled in the House of Lords, in Rowe vs. Young, 2 Brod. ,& Bing., 165, to be necessary.
    Without at present examining the case last cited, it is clear, as was said by a learned American Court, that, “ admitting that, amidst these contradictory and fluctuating decisions, the question would be perfectly open to’ us, it would then become necessary to develope the principles adapted to the case, and to give effect to them, rather than to follow the oscillations of the English Courts.”
    In fact, Lord Eldon said, in Rowe vs. Young, that the state of the law, as actually administered in the Courts, was such, that it would be infinitely better to settle it in any way, than to permit so controversial a state to exist any longer. The Court of King’s Bench was in the habit of holding that no averment of presentment was necessary. The Court of Common Pleas held directly the reverse. A distinction was taken in some cases between a note, where the place of payment was specified in the body of it, or a bill drawn payable, in the body of it, at a particular place; and an acceptance to pay at a particular place, of a bill payable generally. Another distinction was taken between a note payable on a certain day, at a particular place, and one payable on demand, at a certain place. The law as to jiotes has been, perhaps, not as unsettled as the law as to acceptances, in England; but it has been far from being settled. Nichols vs. Bowes, 2 Camp., 498, and Wild vs. Rennards, 1 Camp., 425, were on notes, where the place of payment was fixed in the body of the instrument; and in one, Lord Ellenbokough, and in the other, Bayley, J., held an averment of demand unnecessary. Lord Ellenborough would not even permit it to be proven, though the plaintiff was ready to do it. Best, J., in Rowe vs. Young, denies the distinction between a note and an acceptance. So does Richaldson, J. So does Holroyd, J.
    Bayley, J., in speaking of the case of Saunderson vs. Bowes, and the other cases on promissory notes, said that he could not distinguish them from Fenton vs. Goundry; for in the latter case, the acceptance, payable at the place, was no part of the original conformation of the bill itself; but in the former, the words restrictive of the payment, were incorporated in the original form of the instrument. “ But,” he said, “I do not wish to answer those cases on these grounds; for I am free to confess that I doubt the propriety of those decisions, although I was myself a party to them; and I think it. more manly to say, that 1 consider my opinions in those cases erroneously formed, than to attempt to distinguish these cases from Fenton vs. Goundry, by the use of nice and subtle differences.” And so he denied the distinction. And so did Abbott, C. J. And even the Judges who dissented from them, admitted, and some of them argued strongly, that there was no difference.
    This case of Rowe vs. Young was an action brought in K. B., against the acceptor of a bill, payable at a particular place; and no demand or presentment there averred. The plaintiff had judgment on demurrer, in the King’s Bench; and the defendant removed the case into the House of Lords, by writ of error. The twelve Judges delivered their opinions seriatim:
    Best, Richardson, Hoeroyd, and Baybey, Judges; Garrow and Graham, Barons; Richards, Chief Baron of the Exchequer; and Abbott, Chief Justice of the King’s Bench, held the averment unnecessary. Burrough and Park, Judges; Wood,Baron; and Habeas, Chief Justice of the Common Pleas, held it necessary.
    After these opinions had been delivered, Ebdon, Lord Chancellor, and Lord Redesdabe, holding the averments to be necessary, the House reversed the judgment.
    Notwithstanding this decision, the weight of professional authority in England is clearly against it. In addition to the Judges, eight in number, who then held the averment unnecessary, the names of Eebenborough, Kenyon, Grose, and Manseieed, may be added. This leaves the preponderance of legal authority strongly against the decision of the House of Lords, which, though of the highest authority in England, as the Court of (he last resort, has no other authority here than as it embodies the opinions of those who are known to have been eminent in learning and wisdom. The mere vote of the House, which may have been determined by the opinions of the unlearned members, has no such binding authority here as in England.
    The law on this point is settled in England; but it is not settled for us. In this country it is settled otherwise, by a strong and almost unbroken current of decisions.
    When a person makes a note or accepts a bill, he becomes an immediate debtor to the payee, upon a valuable consideration. Now, if not presenting the note or bill, at the time and place it is payable, be a condition precedent to the liability of the maker of the note, or acceptor of the bill, a failure to present at the lime or place, would occasion a total loss to the holder; for if it cannot be recovered in an action on the note or bill itself, in consequence of an omission to aver presentment at the time and place,, no other form of action will lie, when that proof cannot be made.
    The non-attendance of the holder of the bill, can produce no worse consequences to him than if he had attended, and, the money being tendered, he had refused to accept it. This would not extinguish the debt, nor could such tender be pleaded in bar of the debt, but only of the damages and costs, and with an allegation of uncore prist; and the money would have to be brought into Court.
    This is a condensed abstract of the reasoning of Ch. J. Spencee, in Wolcott vs. Van Santvoord, 17 J. R., 248; and we do not see how its force can be avoided.' The Supreme Court of New-York there held, that an averment of demand was unnecessary; that the time and place of payment were merely modal, forming no essential part of the contract; that it is incumbent on the defendant, whether the payee was at the time and place appointed, or not, to show, in his defence, that he was there, ready and willing to pay, and that the payee did not come, &c.; and that the consequences of such absence are, unless the payee makes a subsequent special demand, and there be then a refusal, merely, that he must be content with receiving the sum originally payable; and if he sue, without a special demand, he loses all claim to damages and costs, and will be himself subject to them.
    To the same point was the decision in Foden vs. Sharp, 4 J. R., 183. The same point was expressly decided in Caldwell vs. Cassidy, 8 Cowen, 271; and Haoctun & Brace vs. Bishop, 3 Wend., 1.
    So in Massachusetts, the same point was decided in Carly vs. Vane, 17 Mass., 389; Rayon vs. Whitcomb, 15 Pick., 212; Ruggles vs. Patten, 8 Mass., 480.
    So in Maine, in Bacon vs. Dyer, 3 Fairfield, 19.
    So in New-Jersey, in Weed vs. Van Horton, 4 Hals., 189, after a full examination of the English cases.
    So in New-Hampshire, in Eastman vs. Fifield, 3 N. Hamp., 333.

      So in Ohio, in Cowan vs* Garro, 1 Ohio ‘R., 483.
    So in Tennessee, in McNqiry vs. Bell, 1 Yerger, 502; Mulkellin vs. Hannum, 2 Yerger, 81.
    So in Alabama, in Irvine vs. Withers, 1 Stewart, 234.
    So in Virginia, in Watkins vs. Crouch & Co., 5 Leigh, 522.
    So in Maryland, in Bawie vs. Duvall, 1 Gill & Johnson,, 175.
    The Supreme Court of the United States first intimated the same opinion in The Bank of the United States vs. Smith; 11 Wheaton, 171 j and in Wallace vs. McConnell, 13 Peters, 136, the same Court gave a direct and explicit decision on the question, after a review of all the authorities. They held that the acceptor of a bill of exchange stands in the same relation to a drawer, as the maker of a note does to the payee; and that in neither case is the place of payment of any importance; and that, in actions on promissory notes against the maker, or on a bill against the acceptor, and the nóte or bill is made payable at a specified time and place, it is not necessary to aver in the declaration,,or prove on the trial, that a demand of payment was made.
    And they again made the same decision in 1840, in Covington vs. Comstock, 14 Peters, 43.
    No American Court, it seems to us, would be justified in now adopting the very doubtful authority of the case of Rowe vs. Young, in opposition to so uniform and authoritative a current of decisions in our own country. It would be wantonly increasing the evil already so grievous, arising from a conflict of opinions among the different Courts in the United States, and in a case in which no reason can be imagined for such a dissent.
   Lacy, J.,

delivered the opinion of the court:

This is an action of debt, founded upon a promissory note, made payable at the defendants’ counting-room, in New-Orleans. The record presents several questions, which we will decide in the order they present themselves.

First. Is it necessary, in an action against the maker of a promissory note, or the acceptor of a bill of exchange, which was made payable at a particular place, to aver and prove presentment and demand at that place?

We are not at liberty to consider this point as open for investigation. It is finally and conclusively settled by the whole course of American decisions.

It is true that, in England, there existed, since 1811 up to 1820, great diversity of opinion upon the point, between the Judges of the Courts of King’s Bench and Common Pleas. Since that time, the principle has been well settled, the case of Rowe vs. Young, 2 Brod. & Bingham, 181; and the judgment of the Court of King’s Bench, was reversed upon error, by the House of Lords, notwithstanding eight Judges out of the twelve were opposed to the decision. The doctrine now established there is in conformity to the opinion of the Court of Common Pleas, as laid down in Callaghan vs. Aylett, 2 Camp. 549. The rule in England now is, (hat in an action against the maker of a note, or acceptor of a bill, payable at a particular place, it is necessary to aver and prove a presentment and demand at that place. It is to be regretted that the rule in England and in the United States is not uniform.

We are, however, constrained to follow the decisions of our own country, which we believe are fully sustained by most if not all the early cases in the English Courts. The weight of authority in England is unquestionably against the judgment of the House of Lords, and in conformity with the principle established by all the superior or appellate Courts of the States that have passed upon the point, as well as by the Supreme Court of the United States. Ambrose vs. Hogswood, 2 Taunt., 60; Callaghan vs. Aylett, 3 Taunt., 397; Nichols vs. Bowes, 2 Camp. N. P. 498; Lyon vs. Sundius and Sheriff, 1 Camp. N. P. R. 423; Wild vs. Rennards, 1 Camp. N. P. R. 423; Trapp vs. Spearman, 3 Esp. R., 57; Fenton vs. Goundry, 13 East.; Smith vs. Delafontaine, same; Foden vs. Sharp, 4 J. R., 183; Wolcott vs. Van Santvord, 17 J. R. 248; Caldwell vs. Cassidy, 8 Cowen, 271; Carly vs. Vans, 17 Mass., 389; Ruggles vs. Patton, 8 Mass. 480; Weed vs. Van Houten, 4 Halstead, 189; Watkinson vs. Crouch & Co., 5 Leigh, 522; Bowie vs. Duvall, 2 Gill & Johnson, 175; Bank U. S. vs. Smith, 11 Wheaton, 171; Wallace vs. McConnell, 13 Peters, 136; Covington vs. Comstock, 14 Peters, 43.

The authorities here quoted unquestionably prove, that in an action against the maker of a promissory note, or the acceptor of a bill of exchange, payable at a particular place, it is not necessary to aver and prove presentment at.that place.

The principal reason assigned, is, that the maker and acceptor are principal debtors to the obligee or holder of the bill, and their liability arises upon a valuable consideration. Their undertaking is an agreement to pay generally, and not conditionally; therefore, it is not necessary to prove presentment at the place of payment. The term, payable at a particular place, is but an intimation or direction that they will have the money there, ready to pay the note or bill when it becomes due. That being the case, it does not enter into or form any part of the contract; consequently, a failure to present the note or bill, does not extinguish the debt or duty; and if the money is ready at the place, on the day it becomes due, it is matter of defence, and may be pleaded in bar of damages, by way of tender, but not in bar of the cause of action.

Although it is not necessary to aver and prove presentment and demand, to maintain the action, it is nevertheless important to state the place at which the note or bill is to be paid, by way of description. And so it has been expressly decided in the case of Covington vs. Comstock, 14 Peters, 43. For unless it be so stated, the Court, it is said, may not know what judgment to render, both as it respects the interest and other matters; the lex loci, and not the lex fori, attaching to the contract.

The principle here stated shows that the second count is defective, in not alleging, by way of description, the place in which the note was payable. The first count is well laid, for it properly sets out the place of payment. The declaration contains, then, one good and one bad count. The demurrer, being joint and several under our statute, reached both counts; and, consequently, the Court ought to have overruled it as to the first count, and to have sustained it as to the second. This they did not do, but gave an entire and final judgment against the defendant below, upon demurrer.

This suit is brought upon a note, bearing interest from date, but payable thereafter. If the party seeks to recover the interest from the date of the note, according to his contract, he must aver its nonpayment upon that day. This is a stronger case than Clary & Webb vs. Morehouse's Adm., decided at the last Term of this Court. The law does not'raise a presumption in favor of a debt or duty bearihg interest, until it falls due. The, note then bearing interest from the date, and the debt being made payable thereafter, to recover the interest accruing before the time of payment, the declaration must show, upon its face, non-payment of such interest, or the Court will only give interest from the time note becomes due.

The judgment of the Circuit Court must, for the reasons above stated, be reversed, and the cause remanded for further proceedings to be had therein, in conformity with law, and the opinion here expressed.

And the same Term, Pike, for defendants in error, filed-the following petition for a re-hearing:

The defendants in error in this case, come and most respectfully move the Court here for a re-hearing of this case, upon the following grounds:

First. That in the opinion of the Court it is decided that the second count of the declaration was bad, because it described a note payable generally; whereas, the note given on oyer was payable at a particular place. Unquestionably; if there had been no count in the declaration with which the note had agreed, it would have been fatal on demurrer. But here the plaintiff sued on two notes: oyer being craved, he produced but one; consequently, he could only recover on the first count, and abandoned his second. Suppose he bad sued on two notes, one for a thousand and the other for two hundred dollars, and, before trial, the smaller note had been arranged, or paid, or lost. If, on oyer, he gave a copy of only the larger note, and that agreed with the first count, how could there be a variance between it and the second count, founded on a different note? It is most respectfully believed that the Court has, in this respect, inadvertantly fallen into an error.

Second. The defendants submit to the Court, whether, under our practice, the statute providing that demurrers may be joint and several, a demurrer is so, unless it is so specially expressed in the demurrer; and whether, if a general demurrer be filed to a declaration containing two or more counts, it can be construed to be a joint and several demurrer, so that for one good count it should not be sustained.

Third. The Court remarks, in its opinion, that, as the note bears interest from date, and the debt is payable in futuro, to recover the interest accruing before the time of payment, the declaration must show upon its face non-payment of such interest, or the Court will only give interest from the time it becomes due.” The correctness of this position we do not desire to controvert; but, with great deference, we submit, whether the omission is any ground for demurrer. The Court correctly point out the- consequences of the omission. If the plaintiff does not choose to demand interest from date, it may amount to an admission that all the interest up to the time when (he principal fell due, has been paid. This is the consequence pointed out by the Court. “ The Court,” they say, “ will only give interest from the time the principal becomes due.” That is all the plaintiff has claimed in this declaration. He has waived all claim to any thing more, and demands no more. Can this be ground of demurrer? Suppose suit was brought on a note for so much, and the current rate of exchange. If the plaintiff did not demand the exchange, nor negative the payment of it, he could not recover it; but his declaration would not be demurrable.

Now in this case, if there be error in this particular, it seems to us that it consists not in overruling the demurrer, but, if such were the case, in giving judgment for the interest from the date of the note to the end of the thirty days, when the principal fell due. Does it appear that the Court below did so? It is not assigned for error; and the judgment is merely for so much debt and so much damages.

And even if this error does exist, it is important not only in this case, but in regard to the practice generally, that the decision should be placed on true and tenable ground; and therefore it is, that, for the first time in my practice, I have, after much consideration, moved the Court for a re-hcaring.

The re-hearing having been granted, and the case re-considered—

Dickinson, J.,

delivered the opinion of the court:

The common law rule, that, upon general demurrer, one good count in a declaration is enough to,entitle the plaintiff to judgment, is changed by our Revised Statutes, (sec. 62, p. 628,) which provide that “ demurrers may be joint and several, and may be sustained as to part of the pleadings, and overruled as to the residue, according to the circumstances of the case, with like effect in all respects, as if a separate demurrer had been filed to each pleading demurred to.” Consequently the demurrer in this case must be considered as joint and several, and go to both counts; the first of which is good, the contract set out corresponding with the note given on oyer. The second count, however, is cleárly defective, the place of payment being wholly omitted. The defendants in.error contend that the judgment is well taken; that they may have sued on two notes, and the one described in the second count may have been paid or settled, and ought to be considered as virtually abandoned. The record, as we think, shows that the two counts were founded upon the same note, and that the oyer given was intended to apply to both, but failed to meet the second count; and the variance being fatal under the statute, which we cannot disregard, judgment ought to have been entered for the plaintiff on the good count, and for the defendant upon the other, in the same manner as if separate demurrers had been filed to each one. If the plaintiffs below had intended to abandon the second count, they should have discontinued upon it before judgment; or even after judgment upon the whole declaration, they might, upon discovering their error, beg leave of the Court to have waived their judgment upon the imperfect count, and entered it for the defendant. Union Turnpike Company vs. Jenkins, 1 Caine’s Rep., 381; Stafford vs. Green, 1 J. R., 505; Backus vs. Richardson, 5 J. R., 476.

There is, however, another objection expressly raised on the demurrer to the whole declaration, viz: the sufficiency of the breach. The first count is upon a contract for $>571.86, with interest from date. The breach is not co-extensive with, but narrower than, the contract; averring the non-payment of the several sums of money mentioned, but not the non-payment of the interest, which the party had agreed to pay from the date; and, therefore, the breach is, for this omission, defective.

It certainly does appear from the record, that interest, as damages, was given the plaintiffs from the date of the note, although there is no allegation in the breach of its non-payment; and though it is not expressly assigned as error, it is raised in argument, and therefore cannot be disregarded. We are bound to look into the whole record, and give such judgment as the Circuit Court ought to have given, or as may seem most agreeable to law. R. S., sec. 36, p. 648.

There has been no motion to remit the excess for interest, since the entry of the judgment; and the plaintiff is not entitled to any more than he claims in his declaration. No matter upon what ground the judgment is wrong, if it operates unjustly and illegally upon the rights or interests of the other party, he is entitled to the aid of this Court. The plaintiff takes judgment at his peril: he may relinquish as much as he thinks proper; the doing so is no just cause of complaint to the defendant. But he cannot be permitted to retain a judgment for a larger sum than, by his own pleading, he shows himself entitled to. Therefore, the judgment of the Circuit Court must be reversed, with costs, and this case remanded for further proceedings to be had therein, according to law, and not inconsistent with this opinion.


source: Caselaw Access Project

author: Dickinson, Judge,

license: Public Domain

text:
    Field against Dickinson.
    Ekeok to Pulaski Circuit Court.

    The term “beyond seas,” in the statute of limitations, means “beyond the jurisdiction of the Stateand applies as well to foreigners who have never come within our jurisdiction, as to our own citizens who are absent.
    This was an action of assumpsit brought by Dickinson vs. Field. The defendants pleaded non assumpsit and actio non accrevit within five years next before the institution of the suit. To this plea, Dickinson replied, that, when the causes of action accrued, he was beyond seas, to wit: beyond the limits of this State, and so had thenceforward ever continued to be, and then was, beyond seas. To this replication the defendant demurred. The demurrer was overruled, and thereupon the defendant below rejoined, in substance, that when the supposed causes of action accrued, the plaintiff- was, and still is, a citizen, of the State of Kentucky, and resident therein; and was not, nor is, a citizen of this State, or late Territory of Arkansas, or resident herein; and that the defendant was, at the time when the supposed causes of action accrued, a citizen of the same State of Kentucky, and resident therein, and that the said supposed causes of action accrued in the said State of Kentucky, and not in this State, or late Territory of Arkansas, and that after the supposed causes of action accrued, the defendant removed to the late Territory, and now State of Arkansas, and became, and ever since then remained, and still is, a citizen thereof, and that more than five years have elapsed after the said defendant so became a citizen of the said late Territory, and now State of Arkansas, next before the commencement of this suit. To this rejoinder the plaintiff" below demurred, which demurrer was sustained; and there was judgment for the plaintiff- below upon the issue joined to the plea of non assumpsit.
    Ashley & Watkins, for plaintiff in error:
    The question arising upon this record, is upon the sustaining the demurrer of the plaintiff to the rejoinder of the defendant, in the Court below, and is one turning wholly upon the construction of our statute of limitations, Steele vs. McCamp, Dig. p. 381, in force at the commencement of this suit, and applicable to the case.
    The statute, after enumerating the period of limitations to the several actions, provides, sec. 2d, “that, if any person, who is entitled to any of the before mentioned actions, be, at the time of the cause of action accruing, within the age of twenty-one years, a married woman, of unsound mind, or imprisoned, or beyond sea, or absent from the United States, such person may bring such action, within such times as are before limited, after the respective disabilities are removed.” And sec. 5 provides, “ that, if any defendant to any civil or criminal cause, hereinbefore cited, absconds or conceals himself, or by removal out of the district, [county,] or Territory, where he resided . when such cause of action accrued, or by any other indirect means,' defeats or obstructs the bringing or maintaining all or any of the aforesaid actions within the respective times limited by this act, such defendant shall not be permitted to plead this act in bar to any suit, action, indictment, or information.”
    ' The plaintiff in error contends, that, upon a correct construction of this statute, his rejoinder to the replication to his plea is good and sufficient to bar the action. We remark, that statutes of limitations, or,1 as they are termed, statutes of repose, are to be favorably and beneficially construed; and are not so much designed to benefit the party seeking to avail himself of their provisions, as to quiet the revival of state contentions, and promote the general good. Statutes of ■limitations are peculiarly local in their operation. They are the law of the forum, and affect the remedy, wherever it is sought to be enforced, without reference to the domicil of the parlies, or the law of the place where the contract was made or to be enforced.
    We assume it to be the correct construction of the statute, that it was passed solely in reference to the citizens of our own Territory, and such foreigners as voluntarily come within our jurisdiction, and submit themselves to our laws, either in the prosecution or defence of their rights. When the statute, therefore, gives to the plaintiff, who is beyond seas, ór beyond the limits of this State when the cause of action accrued, such a length of time, after that disability is removed, within which to commence his suit, it has reference to causes of action which accrued in our own Territory or State, and to our own citizens who may happen at such time to be involuntarily abroad, and that such disability should have no reference or saving application to causes of action which accrued abroad, or to plaintiffs who never were citizens of this State.
    in regard to transitory actions, and suits brought by non-residents, all we ask, upon a fair construction of the statute, is, that, when they submit themselves to our forum, that they should be subject to the same rule as our own citizens. The plaintiff in error said, in the Court below, that the cause of action, if any, accrued in Kentucky, of which State both he and the plaintiff below were then citizens; that, afterwards, he removed to the late Territory, now State of Arkansas, and ever after continued to reside here; and, that he so resided here more than five years nest before the commencement of this suit. Suppose that Dickinson had removed to Arkansas when Field did, and now brought this suit: clearly he would have' been barred by the statute. If, being a citizen of Arkansas, he would have been barred, why is it that he is not barred now? Our forum was as much open to him five years ago as it is now, unless he could show some fraudulent evasion or concealment on the part of the plaintiff in error, which is not pretended to exist. If, also, on the other hand, this same cause of action had accrued to Field vs. Dickinson, and, under the circumstances, Dickinson had come within our jurisdiction, and subjected himself to be sued by Field, this same defence of actio non accrevit, according to the period fixed by our own statute of limitations, would have been available to him.
    The construction of the statute, as claimed by the defendant in error, is simply this: that, because he was beyond seas, within the literal wording of the statute, at the time the cause of action accrued, the statute never does begin to run against him until that disability is removed, or until his return from beyond seas. But is that disability removed, or has Dickinson returned within the meaning of the statutes? The pleadings show not only that he never was a citizen of this State, or late Territory, but that he still is a citizen and resident of Ken-tacky. He returns, then, mere)/ for the purpose of instituting this suit, which he could long since have done. If this construction claimed be correct, there is no period of limitation whatever, to suits commenced by foreigners or non-residents. They continue abroad for any number of years, and dormant causes of action remain suspended, as it were, during their own pleasure. All beneficial operation of the statute in quieting state controversies, and preventing positive injustice by the revival of old and satisfied claims, is defeated by such a construction, independent of the invidious distinction it creates between our own citizens and foreigners.
    We are aware of the construction, in this respect, which has been put, by numerous decisions upon the English statutes, from which ours is copied; but we exclaim against the injustice of that construction, and the feeling in which such a palpable evasion of the spirit and intention ofthe statute originated. These statutes are more favored'now than formerly; and we claim that adjudications, in other States, are not to be of binding authority, when we perceive they are to entail upon us a long course of error, and while we yet have the power to settle the law, as we believe it should be.
    Pike, Contra:

    The only question in this case is, whether the saving clause as to persons beyond seas, in the Territorial statute of limitations, includes as well persons who have never resided in, or been within, the State, in suits or contracts made beyond the State, as citizens of the State, who have been temporarily absent.
    The plaintiff in error claims, that, as the contract here sued on was made, and the cause of action accrued, in Kentucky, where both parties then resided; and as the plaintiff below has ever been, and still is, a citizen of Kentucky, he is bound by the statute.
    The saving clause is in these words: “If any person, who is entitled to any of the before mentioned actions, be, at the lime of the cause of action accruing, within the age of twenty-one years, a married woman, of unsound mind, or imprisoned, or beyond seas, or absent from the United States, such person may bring such action within such times as are limited after the respective disabilities are removed.”

      The expression “beyond seas,” in a statute like ours, is now indisputably settled to mean “ beyond the limits of the State.” See, for this, S elby vs. Guy, 11 Wheaton, 381; Bank of Alexandria vs. Dyer, 14 Peters, 141.
    That the proviso in the statute applies as well to persons who have never been in the state, as to our own citizens who have been absent, is a principle too clearly settled to be now shaken. It has been so held in England, in Stritherst vs. Graeme, 3 Wils., 145; S. C., 2 W. Bla., 723; Williams vs. Jones, 13 East., 449.
    In Massachusetts it has been so decided; and that even if the plaintiff has had an agent within the State, still the proviso operates. Hall vs. Little, 14 Mass., 203; Wilson vs. Appleton, 17 Mass., 180; Bulger vs. Roche, 11 Pick., 39. And it is the same where the word “return” is used. Bulger vs. Roche, 11 Pick., 40; Dwight vs. Clark, 7 Mass., 515.
    The same point has been ruled in New-York, although the statute there provides that the action may be brought within a certain time after the defendant’s “return” into the State.” Ruggles vs. Reeler, 3 J. R., 264.
    So in the Circuit Court of the United States, in Chonequa vs. Mason, 1 Gallis., 342. ■ ■
    And, finally, in the Supreme Court of the United Slates, in Bank of Alexandria vs. Dyer, 14 Peters, 141.
   Dickinson, Judge,

delivered the opinion of the Court:

The demurrer to the rejoinder of the plaintiff, below, raises the question, whether or not the statute of limitations will run against a party who has never come within the limits of our State. The statute does not commence running until a complete cause of action has accrued, and this occurs when the debt or duty can be put in suit, and there is a party capable of suing. Whenever the statute commences running, it does not stop for any obstacle, but continues to run on.

Statutes of limitations are municipal regulations founded upon local policy; and as they regard the remedy, and not the right of contract, they possesano binding power beyond the jurisdiction of the particular StateB or governments that enact them. As they do not enter into, or form any part of, the contract, the ¿ex fori, and not the lex loci, applies in their interpretation. A foreign statute of limitations cannot, therefore, be pleaded to a suit instituted here; and so it has been repeatedly ruled by all the English and American decisions.

In the present case, both the plaintiff and defendant resided beyond the limits of the State when the contract was entered into. Since that time, the plaintiff in error has removed to this State, where he now resides; the defendant still continuing to be a citizen of Kentucky.

To the defendant’s plea of the statute oflimitations, the plaintiff replied, that he was saved from its operation, because he has always been a-citizen of another State. This case arose under our Territorial statute oflimitations, but we apprehend the principle we are about to lay down will apply, with equal force, to the statute of limitations under our state government. Steele & McCamp. Dig. 381, sec. 1 and 2.

The statute, after enumerating the class of cases in which it will run, and which embraces the cause of action now under consideration, contains, in ,express words, a saving in favor of infants, married women, persons of unsound mind, and persons residing beyond seas. These classes of persons the Legislature saved from its operation, until after their disabilities should be removed.

The enquiry now is, what is the meaning of the term beyond seas? This proviso is not contained in the statute of 21st James, and in the case of Dupleen vs. De Rose, 2 Ver., 154. Lord Chief Justice Cow-pek. remarks, “ that it was plausible and seasonable that the statute of limitations should not take place, nor the six years be running, until the parties came within the cognizance of the laws of England, but that that must be left to the Legislature.”

The term beyond seas first occurs in the proviso of the statute of Ann, from which our statute of limitations is derived, in England, the term meant persons who resided out of the realm, and, as such, they were declared to be beyond seas, whether they were either native born citizens or foreigners.

The expression beyond seas has received, in our country, a fixed and determined meaning. It is now well settled, that it applies to persons who are beyond the jurisdiction of the state; as well to foreigners who have never come within the jurisdiction, as to our own citizens who may be absent, and against whom the statute never commenced running.

The different members of our confederacy are regarded in the light of foreign governments, so far as their own municipal regulations are concerned; and therefore, the citizens of one state cannot be barred by the statute of limitations of another state, unless they bring themselves within its jurisdiction; and so it has been repeatedly ruled by all the" authorities. Shelby vs. Guy, 11 Whea., 361; Bank of Alexandria vs. Dyer, 14 Pet., 141; Stritfort vs. Graeme, 3 Wil., 145; Williams vs. Jones, 13 East., 449; Hall vs. Little, 4 Mass., 203; Ruggles vs. Keeler, 3 J., 269; Chonequa vs. Mason & Brown, 3 Gall. 342.

The application of the principle here stated, clearly shows that the cause of action of the plaintiff below, is saved by the proviso of our statute, and consequently the defendant’s rejoinder to the replication must be adjudged insufficient, because it does not contain any matter that will defeat the'cause of action.

The judgment of the Court, below, is therefore affirmed, with costs.


author: Dickinson, J.,

text:
    Carrington & Pryor against Hamilton.
    Error to Hempstead Circuit Court.

    Unless a declaration is signed by the plaintiff, or his attorney, no writ can issue upon it; and such declaration must be stricken from the files, on motion; nor can leave be given the plaintiff or his attorney to sign it.
    The statute of amendments cannot benefit the party.' There is nothing to amend by.
    The plaintiff below placed on the files a paper, purporting to be a declaration in debt. It was not signed by any attorney of the Court, nor by the plaintiff- in his proper p’erson. Upon the return of the writ, the defendants moved to strike the same from the rolls of the Court, upon the ground that it constituted no part of the record. The motion was overruled, and leave asked and given to the attorney for the plaintiff to add his name to the declaration; and judgment was thereupon rendered against the plaintiffs in. error, by default.
    Trapnall and Cocke, for plaintiff in error:
    The 51st sec. of the Hevised Statutes, under the head of “Practice at law,” requires “ that every declaration, statement, or other pleading, shall be signed by the party filing the same, or' by his attorney.”
    It is evidently the true construction of the statute, that the signing here referred to, should precede the filing of the declaration or other pleading. An unsigned declaration is a mere nullity. It cannot form the commencement of an action. The Clerk has no authority to issue a writ upon such a paper, or to spread it upon the files of the Court; and if he does so, the Court will disregard it, or order it to be stricken from the files, as irregularly and improperly placed there. The first section of the chapter above referred to, provides, that “ suits at law may be commenced in any of the Circuit Courts of this State, by filing in the office of the Clerk of such Court, a declaration, petition, or statement in writing;” &c. &c. And the second section provides, that “ no original writ shall be issued, until the declaration, petition, or statement be filed in the Clerk’s office.”

      If we are correct in supposing that the statute requires the declaration to be signed, before it can properly .be placed upon file, then an unsigned declaration cannot legally be filed, and consequently cannot be the commencement of a suit, or authorize the Clerk to issue an original writ. The Court, therefore, erred in refusing to strike the declaration from the files, the same not having been signed as required by law. The Court also manifestly erred in permitting the attorney for the defendant to amend his declaration, by adding his own name thereto. The statute of amendments was intended to afford a remedy for defective pleadings, properly filed and placed before the Court. But it certainly never was designed 'to go the extravagant length of permitting a party, after the writ had been issued and executed, to come in, and for the first time file his declaration, at the calling of the cause on the docket. The term “ amendment” necessarily implies something already in existence, to be improved or amended. But under our statute, there could be no declaration in Court, without being signed by the party or his attorney; and, consequently, there was’" no subject upon which an amendment could act. The effect of the leave granted in this case, was not to amend a defective declaration already upon file and before the Court, but it was permitting the plaintiff below, at the calling of the cause, after the writ had been issued, executed, and returned, to come forward, and for the first lime file a declaration in Court. It was an act, not of amendment, but of creation. For, we again repeat, this paper could not be a declaration upon the files of the Court, until it had been signed, as required by the 51st section already referred to.
    The Court also erred in giving judgment at the same term the amendment was made. To entitle a party to judgment, the statute requires that the writ shall be issued and served on the defendant at least thirty days before the meeting of the Court.
    If the positions we have endeavored to establish be correct, the Court, in this case, permitted the plaintiff below to take judgment upon a declaration filed for the first lime during the term, without any process having been issued or served upon the defendants, and without their making any appearance whatever to the action. The process, copied into the record, and executed upon the defendants below, was improvidently and illegally issued by the Clerk. There was then no declaration on file in his office, that could authorize the issuance of the writ. And certainly the rights of the plaintiffs could not be compromised by an illegal act of the Clerk; nor would they be bound to obey a writ which the Clerk had issued without authority of law, and in direct violation of the express provisions of the statute.
    The form of the judgment in this case is also erroneous. It is a judgment by nil.dicit, whereas, if any judgment at all could have been legally given, it should have been by default; for the Court will observe, the defendants below did not appear to the action. The motion to strike out was made without entering their appearance.
    Pike, Contra,

    submitted this case without argument.
   Dickinson, J.,

delivered the opinion of the court:

The 51st section of the Revised Statutes, regulating the practice of the Circuit Courts, (627,) requires, that every declaration, statement, or other pleading, should be signed by the party filing the same, or by his attorney. The first section of the same act provides, that suits at law may be commenced in any Circuit Court of this State, by filing in the office of the Clerk of such Court, a declaration, petition, or statement in writing; and the second section declares, that no original writ shall be issued, until the declaration, petition, or statement shall be filed in the Clerk’s office.

These sections, taken together, clearly show, that the statute requires the declaration to be signed, before it can be filed; and no writ can properly issue upon an unsigned declaration. The declaration is the authority to issue the writ; and if the party fail to file a proper one, he is not entitled to the writ.

The statute of amendments cannot benefit the party in this instance. He can only amend when there is .something to amend by; therefore, the Court erred in not striking the pretended declaration from the files.

The exceptions of the plaintiff in error having presented these facts to our consideration, the judgment below must therefore be reversed, with costs, and the Circuit Court directed to strike the paper purporting to be a declaration, from the files of the Court.


author:
      Lacy, J.,
     Ringo, C. J.,

text:
    Caldwell against Bell & Graham.
    ERROR to Pulaski Circuit Court.

    Where the record shows that the Judge who presided upon the trial, was specially commissioned for that purpose, and nowhere contained any statement or presumption by which his power or authority can be questioned, the superior Court is bound to presume that he had ample authority.
    In debt on judgment, where the declaration alleges that judgment was rendered for so much debt, and nine dollars and thirty-two cents costs, and the judgment is merely for all costs, even if an execution in the transcript states the amount of costs as in the declaration, there is variance between the record and the declaration, on the plea of nul tiel record,.

    This was an action of debt, upon a judgment of Christian Circuit Court, in Kentucky, brought by Bell & Graham against Hon. Charles Caldwell, who was, at the time suit was brought, Judge of the Pulaski Circuit Court. The record showed that the cause was tried before the Hon. Samuel H. Hempstead, commissioned as Special Judge, on account of the regular Judge being a party to the suit. The cause was tried at September Term, 1840, before which time, Judge Caldwell had resigned, and the Hon. John J. Clendenin been appointed in his stead. This fact did not appear in the transcript.
    The declaration stated a judgment of Christian Circuit Court, for $273 58 debt, and $9 32 costs. On nul tiel record pleaded, and issue, the transcript produced showed a judgment merely for “all costs expended, &c.;” and contained copies of four executions, one stating the costs at $9 32, the next at $10 02l, the next at $10 73, and the last at $11 43|; but the Court below gave judgment for the plaintiff on the issue.
    Ashley and Watkins, for the plaintiff:
    The questions arising upon this record, are, 1st, Whether the proceedings to final judgment, before Samuel H. Hempstead, Special Judge, when the regular Judge of the Court below was not disqualified from sitting in the cause, are not coram non judice, and void, and this cause to be dismissed for want of jurisdiction, and the judgment liable to be perpetually superseded; and 2d, Whether the Court below did not err, in admitting the supposed transcript of the record of the Christian Circuit Court of Kentucky, as evidence upon the issue joined to the plea of nul tiel record, when there is a variance between the declaration and the transcript offered in evidence; and the amount for which the judgment is taken, is not warranted or sustained by that transcript.
    Admitting the appointment of Samuel H. Hempstead, as Special Judge in this case, to have been originally valid and proper, we submit, whether such appointment, and his authority to sit in this case, was not determined by the appointment of election of a Judge of said Court, who was not disqualified by law from adjudicating the case. The reason of the appointment of the Special Judge, was the disqualification of the then Judge of the Circuit Court, by reason of his being a party to the suit; but upon the commissioning of a regular Judge of said Court, who was not so disqualified, the reason of his appointment having ceased, it would seem that his appointment and authority should cease also; otherwise, the anomaly is presented of two Judges presiding, or entitled to preside, in the same Court, upon the same trial.
    As to the second ground assigned for error, the Court will perceive, upon inspection of the transcript of the record of the Christian Circuit Court, upon which this suit is founded, brought up here by bill of exceptions, that it does not contain any judgment for costs, or fee bill, or specification for costs, in lieu of the same; and that in this respect there is a variance between the record and the declaration; and that the amount claimed in the declaration, and the amount of the debt for which the judgment is taken, are not sustained or warranted by such transcript; and if so, the Court below erred in admitting it as evidence in support of the issue of nul tiel record.

    Trapnall and Cocke, Contra,

    submitted this cause without argument.
   Lacy, J.,

delivered the opinion of the court:

The points raised by the assignment of error, present, first, the question of the power and authority of the Judge who presided at the trial, to try and determine the cause; and, secondly, a variance between the declaration and the record adduced in evidence. The record shows that Ihe Judge who presided upon the trial, was specially commissioned for that purpose; and it nowhere contains any statement or presumption by which his power or authority can be questioned. This Court is therefore bound to presume that he acted in obedience to his authority.

The doctrine of presumption or intendment of law, in favor of the judgments and decrees of the Circuit Courts, has been so often stated by us, that it is deemed unnecessary to add any thing further in support of it. He who impeaches the opinion of the Court below, must make it appear in what the error consists. If he fail to do so, the in-tendment of law operates to affirm the proceedings.

This case was tried upon the issues of mil tiel record and nil debut. The declaration avers that the defendant below was indebted, on a judgment of a sister State, in the sum of two hundred and seventy-three dollars and fifty-eight cents, in debt, and the sum of nine dollars and thirty-two cents, as costs. The record offered in evidence corresponds with the sum laid in damages, but there is no given sum adjudged as costs.

There were three executions that issued upon the judgment. In the first, the amount of costs stated is ten dollars two and a half cents; in the second, ten dollars and seventy-three cents; and in the third, eleven dollars forty-three and a half cents. The inquiry now is, does' the record offered in support of the declaration correspond with it, or is there such a variance as will be fatal upon an objection to it as evidence?

It is a general rule, that the contract must be stated correctly; and if the evidence differ from the statement, the whole-foundation of the action fails, because the contract is entire in its nature, and must be proved as laid. Ist Chilly's Pl., 334.

In debt on judgment, care must be taken that there be no variance between the declaration laid and the judgment offered in evidence. Such variance is in general fatal. A party is bound by his own allegation to strict proof of a written document. Any variance that affects its sense, or changes its legal tenor and effect, will be fatal. 3 Starkie Pl., 4; P. 15, 87; Dyer and another vs. Stevens, 6 Mass. R., 387; Smith vs. Drew, 5 Mass. R., 514. In Thompson vs. Jameson, 1 Cranch, 383, it was held, in an action of debt on a decree in chancery, for J5860 12s. Id., with interest from a certain day to the date of the decree, if the declaration be only for the principal without the interest, the variance is fatal. So it has been ruled in Rositee vs. Downs, 4 Con. R., 291.

Each execution shows a different sum as costs, and neither corresponds with the averment made. The variance between the allegation and the proof offered in support of it, was therefore fatal; and the judgment of the Circuit Court must be reversed, with costs, and the cause remanded, with leave for the parties to amend their pleadings, if asked for.

After which, at the same term, Trapnali. and Cocke filed the following petition for re-hearing:

The defendants in error, William Bell & Co., pray the Court for a re-hearing of this cause.

The judgment rendered by the Pulaski Circuit Court is reversed for the alledged variance between the declaration and the record produced in evidence, the admission of which was objected to by the defendant, in the Circuit Court, and a bill of exceptions taken to the judgment of the Court overruling the objection.

It is stated, in the opinion of this Court, that the cost, alledged in the declaration, is $¡9 32, and that there are only three executions contained in the record, and that the costs stated in neither of them accord with the declaration. The Court will see,, by reference to, and a re-examination of, the record, that there were four executions issued, instead of three; and that, in the first, which was issued upon the judgment, the costs are stated to be f>9 32, and is in exact correspondence with that allegation of the declaration.

For this, the defendants in error pray a re-hearing of the cause.

The re-hearing having been granted, and the case reconsidered,

Ringo, C. J.,

delivered the opinion of the Court:

In the opinion heretofore delivered in this case, the Court inadvertently overlooked the fact, that the transcript of the record produced and offered as testimony by the defendants in error on the trial of this case, to support, on their part, the issue joined on the plea of nul tiel record, contains four instead of three executions, issued upon the judgment therein mentioned; and, proceeding upon such mistaken view as to this fact, stated that three executions, only, appeared, by said transcript, to have been issued on the judgment therein mentioned, and that the costs, as stated, in no one of them, correspond, in amount, with the sum stated in the declaration, as having been adjudged to said defendants, and decided thereupon, that there was a variance, in this respect, between the allegations in the declaration descriptive of the judgment upon which the suit is founded, as to the costs, and the testimony adduced in support thereof, for which the Court ought to have sustained the objection of the plaintiff in error to its admission on the issue joined, and excluded it from the case, when, in fact, the first one of the four executions contained in said transcript, and issued on the judgment therein mentioned, contains an amount corresponding, exactly, with that stated in the declaration as having been adjudged to the defendants in error for their costs, which is stated, on the face of said execution, to have been adjudged to the defendants “for their costs in that behalf expended, whereof the said Caldwell and Boits'are convict, as appears to us of record.” Upon this fact being made known to the Court by the petition filed for a re-hearing, the same was granted; and the case having been again heard, and the opinion and judgment of this Court pronounced therein re-considered, we still entertain the opinion that there is a material variance between the allegation in the declaration, as to the judgment for costs, and the judgment contained in the transcript offered as testimony on the trial, on account of which the motion of the plaintiff in error to reject it ought to have been sustained, and the transcript rejected, notwithstanding the exact correspondence between the amount stated in the declaration and in the first execution as having been adjudged to the defendants for their costs, as before mentioned.

The defendants in error sue as surviving partners of John Hall, and in their declaration set forth and describe the judgment upon which they sue, as follows: “For that, whereas, on the 9th day of July, 1839, in the Circuit Court of Christian county, State of Kentucky, in the said county of Christian, by the consideration and judgment of said Court, the said plaintiffs, and their deceased co-partner, as partners as aforesaid, recovered, against the said defendant and a certain John Botts, who is not sued herein, the sum of two hundred and seventy-three dollars and fifty-eight cents, which, in and by said Court were, then and there, adjudged to the said co-partners, doing business under the style of Wm. Bell & Co., as aforesaid, for their damages, which they had sustained by reason of the non-performance, by the said defendant and said Botts, of certain promises and undertakings then lately made by the said defendant and the said Botts to the plaintiffs and their deceased co-partner aforesaid, as also the sum of nine dollars and thirty-two cents for their costs by them about this suit in that behalf expended, whereof the said defendant and the said Botts, as by the record and proceedings thereof, remaining in said court more fully appears.” The plea of nul tiel record imposes on the party pleading a record, the necessity of showing, on the trial, such record as he has set forth and described in his pleading; and if he fails to do so, the judgment, as to .any right derivable from such record only, must be against;the party pleading it; and it may be remarked, here, that allegations descriptive of a record must, according to the well established rules of pleading, be supported by testimony corresponding therewith in every part essential to show that the record adduced is the same record described in the pleading. The allegations above quoted from the declaration, according to the literal reading, or any legitimate construction thereof, are descriptive of the record of a judgment given and entered up specifically for the sum of ‡9 32 in numero, while the record offered as testimony to support said allegations, as to the costs of suit, contains no such adjudication; but, on the contrary, shows a judgment in favor of the defendants in error, and John Hall, their deceased partner, against the plaintiff in error and John Botts, that the former recover of the latter “their costs by them about the suit in this behalf expended,” leaving the amount of costs to be subsequently taxed, or otherwise ascertained and determined in some manner authorized by law; and, in this respect, the judgment contained in the transcript adduced in testimony on the trial, not only varies from the allegations descriptive of the judgment mentioned in the declaration, but differs also from the judgment for costs as recorded in the Courts of England and some of the United States, where the' common law practice of taxing the costs before the final judgment is signed or recorded, and, when the amount is ascertained and determined, of inserting it in numero in the judgment itself prevails, in which case the form of allegation adopted in this case, as descriptive of the judgment for costs, would be proper, and describe the judgment truly. But such allegations surely do not, either appropriately or truly, describe such a judgment for costs as the one contained in the transcript before us, which neither determines the amount of costs recovered, nor indicates in what manner the amount may be ascertained or determined; consequehtly, the amount of costs recovered by such adjudication cannot be proved by the judgment itself; but must be established by something extrinsic. And therefore, when no specific sum is adjudged to the party for his costs, he should not, in declaring upon such judgment, describe it as a judgment for costs in numero, but should describe it truly, and then, by appropriate aver-ments, show the amount of costs to which he is entitled, upon and by virtue of the judgment. And the case is not changed, notwithstanding a specific sum is mentioned in each execution issued upon such judgment as having been adjudged for costs, because the execution is no part of thev judgment upon which the action is founded, and which alone confers the legal right asserted in the declaration. Besides which, the sum stated in each execution as having been adjudged for costs, varies in amount; and therefore, if the judgment warrants such final process, and the costs so stated therein can be legally recovered by virtute of such judgment, these facts, alone, would prove that the adjudication is not for any specific sum; and an allegation so describing it, neither accords with the letter, or the legal operation and effect of the judgment, which is, both according to the literal reading, and legal operation and effect thereof, indeterminate as to the sum or amount of the costs to which the party is entitled.

We are, therefore, of the opinion, that there is a material variance between the judgment contained in the transcript of the record adduced in testimony on the trial of the case, and the judgment described in the declaration; and that the Circuit Court erred in overruling the objections thereto of the plaintiff in in error, and admitting said transcript as evidence upon the issue joined, and deciding thereupon that there was such record as was set forth and described in the declaration; and for this error, the final judgment of the Circuit Court given in this case ought to be, and the same is hereby, reversed, annulled, and set aside, with costs; and the case remanded to the Court from whence it came, for further proceedings to be there had therein, according to law, and not inconsistent with this opinion, with instructions to said Circuit'Court to suffer the parties to amend their pleadings, if they shall ask leave to do so.


author: Ringo, C. J.,

text:
    Gunn’s Adm’r against The County of Pulaski.
    Application toe Mandamus.
    The county of Pulaski, as well as every other county in this State, is bound to pay for • the board, nursing, medical and burial expenses, of any person who falls sick or dies within its limits, if he have not money or property to pay therefor.
    When such expenses have been incurred, the proper county court is bound to make such allowance therefor as may be just.
    Such county court must exercise a legal discretion as to the amount to be allowed, but is imperatively bound to exercise jurisdiction of the matter, and adjudicate the case.
    If it refuse to make any allowance, the expenses having been confessedly incurred, it will be compelled to do so, by mandamus.
    The corporation of Little Rock is not, under any circumstances, responsible for such charges.
    Where an inferior tribunal has a discretion, and proceeds to exercise it, that discretion cannot be controlled by mandamus; but if it refuses to act or exercise the discretion, a mandamus lies, to put it in motion.
    Tkapnall and Cocke, for the motion:
    R. W. JohnsoN, Atto. Gen., Contra.

   Ringo, C. J.,

delivered the opinion of the court:

This is an application, founded on the petition of William Gunn, sworn to by himself, for a mandamus to the County Court of the county of Pulaski, to compel said Court to allow his account for the expenses of burying one Patrick Farrelly.

From said petition, it appears that Farrelly died within the corporate limits of the city of Little Rock, in the month of August, 1839, leaving no money, property, or effects, from which the expenses attending his burial could be paid: that he was buried by Gunn, who incurred and has borne the whole of the expenses incident to his interment: that he had a family in another State, to whom he made remittances; but that he was very poor, and had not been able, whilst sick, to provide himself with shoes and stockings, which were furnished by a friend. That he, Gunn, applied to the then Mayor of the city, to know at whose expense he should be buried, and was told by him that the Mayor had nothing to do with it, but that he must go to Thomas Sutton, the city constable, which he did; and that said constable directed him to bury Farrelly, which he did accordingly. That the County Court not being then in session, it was wholly out of his power to obtain an order of said Court for that purpose. That he filed his account in the County Court, for allowance against the county, on the first day of February, 1840, which was duly established before said Court, but the Court refused to allow the same, or order the payment thereof to be made out of the county treasury, upon the ground, as stated in the record of said Court, that “ the corporation of the city of Little Rock is bound; that Thomas Sutton, City Constable, is bound for said claim; that it is not such a just claim against the county, as in the opinion of the Court should be allowed and paid out of the county treasury.” All of the most important facts set forth in the petition, are established by a duly certified transcript of the record of the County Court, on the motion for said allowance, filed with and made a part of said petition.

The County Court, in refusing to allow this claim, appears to have proceeded upon the ground that it was not a demand which the county was legally bound to pay, and to have, considered and treated it as a legal charge upon the treasury or funds of the city of Little Rock. Testimony to establish the account was adduced, and heard by the Court; and, in our opinion, there can be no doubt that the refusal of the Court to make the allowance, was neither upon the ground that it was unjust or unreasonable, but solely upon the ground that it was not a legal charge upon the county.

We have, therefore, the single question to determine, whether, under the circumstances above stated, the county of Pulaski is or is not legally bound to pay the reasonable burial expenses of such transient poor persons as may have died at that time within the corporate limits of the city of Little Rock, in said county.

On the part of the county, it has been urged that, inasmuch as by law it is provided that “ all fines, amercements, and penalties, imposed for offences committed within the city of Little Rock, shall enure to said city, and, when collected, shall be paid over into the hands of the treasurer thereof,” it is more consonant to law and justice, that such demands as the one in question should be paid by the city than the county. See statute approved February 21st, 1838, Acts 1837, page 65.

On the part of the petitioner, we are referred to ch. 110, sec. 3, Rev. St. Ark., page 606, as establishing the liability of the county. This section provides that “ when any non-resident, or any other person not coming within the definition of a pauper, shall fall sick or die in any county in this State, not having money or property to pay his board, nursing, medical aid, or burial expenses, it shall be the duty of the Court to make such allowances therefor as shall seem just.”

The first section of this statute enacts, that “ every county in this-State shall relieve, maintain, and support its own poor, such as the lame, the blind, the sick, and other persons, who, from age and infirmity, are unable to support themselves, who have no sufficient estate of their own, and who have not removed from any other county for the purpose of imposing the charge of keeping them on any county other than the one in which they last lived.”

The second section of the same statute requires the County Court, from time to time, and as often and for as long a lime as it may be necessary, to provide, at the expense of the county, for the support and maintenance of such poor persons, and order, from time to lime, the defraying such expenses, by drawing orders on the treasury of the county.

The provisions here quoted indicate plainly the circumstances under which a person shall be considered a pauper, and become entitled to a support and maintenance at the expense of the county. But there is no pretence that Farrelly was a pauper, within these statutory provisions, or that he was unable to support himself; but, on the contrary thereof, the fact that he not only supported himself, but made remittances to his family in another State, is expressly shown. He is therefore clearly shown to be one of that class of persons expressly provided for by the provisions contained in the third section of the statute above quoted; and the county is expressly bound to pay the expenses of his burial; and the County Court is required to make such allowance for the payment thereof as shall seem just. Therefore; the County Court must exercise a legal discretion as to the amount to be allowed; but it is imperatively bound to entertain jurisdiction of the matter, and adjudicate the case.

We have carefully examined all of the statutory provisions on the subject, without discovering any thing to warrant the conclusion that the corporation of the city of Little Rock is, under any circumstances, responsible for the charges in question,'or that the petitioner has any other appropriate legal remedy for the enforcement of his legal right against the county.

In a case in the Supreme Court of New York, ex parte Nelson, 1 Cowen, 423, Savage, Chief Justice, is reported to have said, that “a mandamus is proper where a party has a legal right, and there is no other appropriate legal remedy, and where in justice there ought to be one. But where a discretion is vested in any inferior jurisdiction, and that discretion has been exercised, a mandamus will not be granted, because this Court cannot control, and ought not to coerce, that discretion; nor will a mandamus be granted where error will lie.” And in the case of Hull vs. The Supervisors of the County of Oneida, 19 Johns. Rep., 260, the same Court is reported to have said, “ that the distinction recognized by us is, that where the inferior tribunal has a discretion, and proceeds to exercise it, we have no jurisdiction to control that discretion by mandamus. But if the subordinate public agents refuse to act, or to entertain the question for their discretion, in cases where the law enjoins upon them to do the act required, it is our office to enforce obedience to the law by mandamus, in cases where no other legal remedy exists.” The case of The People ex relat. Wilson vs. Supervisors of Albany, 12 Johns. Rep., 414, and the matter of Bright vs. Supervisors of Chenango, 18 Johns. Rep., 242, exemplify this distinction.

The principles asserted in these cases meet with our approbation fully, and, in our opinion, they are in accordance with, and fully sustained by, the uniform current of decisions, both in this country and in England. See the case of The King vs. The Justices of Kent, 14 East., "395; and The King vs. Archbishop of Canterbury, &c., 15 East., 117.

Although'it is possible that the petitioner may have some other legal remedy, to enforce the payment of his demand against the. county, we are clearly of the opinion that he has none as adequate or appropriate as this; and therefore his case is within the principles established by the authorities above referred to. The writ'of mandamus must therefore be, and it is hereby, granted, to compel the County Court to take cognizance of the demand presented by the petitioner for allowance, and adjudicate the same, and therefore allow to him such sum as shall seem just, and direct the same to be paid out of the county treasury.