CONTAINED IN THIS VOLUME.
to sue part, and not all of the obligors.
Taylor v. Auditor.
174
5. But the objection that parties who ought
to be joined were omitted, was not avail.
able, even at common law, on demurrer,
unless it appeared in the declaration that
they were still living. If this did not ap.
pear, the objection could only be taken
advantage of by plea in abatement.
The failure or omission of a non-resi-
dent plaintiff to file bond for costs before
he instituted suit, is matter in abatement
only and if the defendant pleads in bar,
the objection is waived. Webb v. Jones
et al.
330
1. The want of bond for costs, where the
plaintiff is a non-resident, may now be
taken advantage of by motion: but the law
now allowing that to be done, does not
change the nature of the defence, or pre-
scribe the time within which the defend-
ant shall be at liberty to avail himself
of it. Clark v. Gibson.
2. It is, therefore, still matter in abate-
ment only, whether interposed by plea or 7.
motion; and if, instead of availing him.
self of this defence at the proper time,
the defendant interposes a defence to the
the merits, he waives the objection al-
together.
No question upon a demurrer to a plea
in abatement can be raised in this coart,
if, after demurrer sustained, the defend-
ant pleaded in bar.
id
3. And the rule is the same, whether he ABSCONDING, CONCEALED AND
pleads generally to the merits or demurs,
before or after his motion to dismiss. In
either case he waives the objection. id
4. Where a joint and several co-obligor
was not sued, and it appeared from the
declaration that he was still living, it
was good ground of general demurrer at
common law; and may, perhaps, be a
valid objection to a declaration in a suit 1. An accord, to be a bar, must be re-
commenced before the adoption of the
Revised Code; where it does not appear
in the declaration that the obligors reside
in different counties; for if such be the 2.
case, the plaintiff should show it by pro-
per averment in the declaration, in order 3.
ceived and accepted in satisfaction.-
Accord without satisfaction is no bar.
Ballard v. Noaks,
In general an accord should be executed
and not executory.
id
Where the plaintiff received from onc
this kind would be good. Any change,
or alteration which renders the credit.
or's situation more advantageous, or the
debt more secure, will suffice.
id
1. In action on the case, a recovery, re-
lease or satisfaction need not be pleaded,
but may be given in evidence under the
general issue. Whatever will in equity
and conscience preclude the plaintiff's
right of recovery, may be given in evi-
Where, in case for negligence, one
dence. Jones v. Buzzard, et al., 415
of the defendants, (who were joint tree-)
passers,) seventy-eight hides, of the va
lue of $250, as indemnity and redress for
the trespassos committed, it was such
an accord and satisfaction as constitutes
a bar to an action against any or all of
the co-trespassers.
id
4. The doctrine that one bond accepted in
lieu of another is no satisfaction, holds
only where there is a simple exchange
of bonds. There must be some differ-
ence between the former and latter con.
tract, to show that the parties intended
to alter it by substituting something
more advantageous to the creditor than 2.
he before possessed, as by shortening
the time, giving other security or the
like. Pope v. Tunstall, et al.
5. To a bond, accord and satisfaction
by deed alone can be pleaded.
6. Accord executed is satisfaction-accord
executory is not-andjan accord must be
completely executed, in all its parts, be.
fore it can produce any legal obligation
or effect.
id
7. A plea, simply alloging acceptance of
a smaller sum of money, in satisfaction
of a larger, is bad but if it alleges the
payment of a less sum before the day of
payment stipulated in the contract, or at
a different place; or the delivery of a
specific articlo in satisfaction, and ac-
ceptance thereof in satisfaction, it is
good: so a plea alleging payment of a
less sum by a third person, and accept-
ance in satisfaction.
id
8. An accord, with mutual promises to
perform, is good, though the thing be
not performed at the time of action. id
9. If a debtor give his note, endorsed by a
third person, as further security for part
count in the declaration recites a writ of
attachment, by virtue of which, it is al-
leged, certain property was seized, and
afterwards lost by negligence of the
sheriff and plaintiffs in attachment, the
defendants have a right to read the ori
ginal writ in evidence to the jury.
of the debt, which is accepted by the 1. An agreement between a judgment
creditor in full satisfaction, it is a valid
discharge of the whole of the original)
debt; and may be pleaded in bar as an
accord and satisfaction.
id
10. An express agreement by a creditor
to take a bill or note for the full amount
of his debt, as an absolute payment or
extinguishment thereof, destroys the
right of action on the original contract.
id
11. In debt on bond, a plea avering that
creditor and his judgment debtor, that
a writ of garnishment upon the judg.
ment shall not issue against a person in-
debted to the debtor, is a mere nudum
pactum; and if it were not, it would be
no ground for a dismissal of the suit.
Walker v. Bradley,
578
before suit brought, the obligees in the 1. After judgment, amendments in the re-
bond had taken a third person into part-
nership; that before suit the defendant,
with two securities, executed to the 2.
new partnership a new bond, on longer
time, which was accepted and received
in full satisfaction and discharge of the
bond sued on; these facts being aptly
pleaded; is a good plea in bar of ac.
cord and satisfaction.
id
12. Shortening the time of payment alone,
is not the only case in which a plea of
turn of service can only be made in
matters of form. Rose v. Ford.
The provisions in the Revised Statutes,
in regard to demurrers and amendments
after demurrer, do not essentially differ
from those contained in St. 27 Eliz.
and 4 and 5 Anne, taken together, and
the adjudications upon the latter will
generally apply to such cases as arise
under the former. Davies v. Gibson,
that court gives in such case is wholly
illegal and void.
3. The party demurring is required spe-
cially to express in his demurrer the
particular defect or imperfection which 6. The defendant before a justice, by ap.
vitiates the pleading; and is prohibited
from so expressing in his demurrer any
matter which is only cause of special
demurrer at the common law; while it
is enjained upon the court to amend any 7.
defect or imperfection not so expressed
in the demurrer.
id
4. When the pleading, so amended, exhib.
its sufficient matter to enable the court
to give judgment according to the right
of the cause, judgment must be given
thereupon, without regarding any defect
id
or imperfection in the pleading.
5. But this general rule is to be understood
with this exception, that the court can.
not amend as to matters of fact which
are not in any manner stated by the par-
ties. When, therefore, the facts stated
cannot, under any form of stating them,
bo made to exhibit a legal cause of ac-
tion or ground of defence, the court is
bound to decide the matter against the
party, whose pleading is so defective,
because he does not show any legal
right to the thing in demand.
APPEAL FROM JUSTICES OF THE
РЕАСЕ.
pealing, precludes himself from taking
advantage of any irregularity in the pro-
ceedings before the justice. Ball v.
Kuykendall,
195
He cannot, therefore, in the circuit
court, plead in abatement the misnomer
of the plaintiff.
id
1. An appeal may be taken by the defend.
ant, under our statute, after a judgment
by default, without first applying to the
court to set aside the judgment. Rose
vs, Ford,
A party may appeal to the supreme court
from the circuit court, upon filing affida-
vit, without recognizance-the latter be-
ing necessary only when he desires a
supersedeas. Childress vs. Foster, 123
1. Where an action was commenced
against two defendants, before a justice,
who rendered judgment by default
against the defendant without any ap.
pearance, and it appears from his docket
merely that "the defendant" appealed;
if judgment is again rendered by default
in the circuit court against both defend.
ants, it is error. Woolford v. Howell, 1
In such case, the entry in the record of
the circuit court, of the appearance of
"the parties," must be considered as
applying only to those who were under
legal obligation to appear, by service of
process, or otherwise,
1. Where the entry on the justice's dock-
et was, that the plaintiff came and
prayed an appeal, and offered A. B. as
special whereupon A. B. came and ac-
knowledged himself jointly bound with 2.
said defendant to pay the costs and con-
demnation of said circuit court; signed
by the justice; no valid appeal was taken
by either party. Woolford, et al. v. Har.
rington,
2, There can be no appeal without an or. 3.
der of the justice allowing it, and a re-
cognizance. The mere prayer of an
appeal, and offer to give special bail,
does not constitute an appeal. There.
The defendant, by appearing gene-
rally, waives all exceptions to the writ
or return, or at least is precluded there.
by from taking any advantage of them.
Rose v. Ford,
fore, in this case, there was no appeal 4. But he has no legal right to appear to,
on the part of the plaintiff
3. The defendant neither prayed nor took
an appeal-nor did he enter into a valid
recognizance-nor did the justice grant 5.
or allow him an appeal.
id
4. The recognizance is wholly void and nu
gatory. It contains no valid condition,
it is not signed by the parties, and it
was taken in a case where no appeal
was either prayed or granted. It was
made payable to no one, nor did A. B 1.
ever become the security of the defend-
ant in any recognizance.
id
5. In such case, there being no appeal, the
circuit court cannot assume cognizance
of the cause; and any judgment which
or defend the action, after judgment ren-
dered against him. He then has no day
in court.
id
Praying an appeal, therefore, is no such
appearance as waives any objection to
the writ or return.
id
Under the territorial statute of assign-
ments, an assignment was an agreement
or contract in writing entered into be.
tween the assignee and assignor for a
valuable consideration; and was equiv.
alent to drawing a now bill in favor of
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