Opinion
12-08-1813
Beverleys v. Holmes
Williams, for the plaintiff in error. Wirt, Contra.
Argued December 6, 1813
This was an action of assumpsit, upon a writing not under seal, in the following words: " Two months after date, we promise to deliver to Hugh Holmes, Esq. or his order, Augusta bonds the amount of fourteen hundred and fifty dollars, payable in eighteen months from the 14th of October last. March 27th 1806.
" Carter & Peter Beverley."
The declaration contained two counts. In the first, the writing was specially declared upon, without setting forth any consideration for the promise. The second was for money had and received, in the usual form. The defendants pleaded that they did not assume, & c. The jury found for the plaintiff the sum of one thousand four hundred and fifty dollars, with interest from the 15th day of April 1807, until paid, subject to the opinion of the court on a question of law, whether the writing filed, (the execution of which, and also the existence of the partnership stated in the declaration, was admitted,) " the same being the only evidence before the jury," was proper evidence in support of the declaration, so as to entitle the plaintiff to recover?
The County Court was of opinion that the law on the verdict was for the plaintiff; and, its judgment being affirmed by the Superior Court of law, the defendants obtained a writ of supersedeas from a judge of this court.
Judgments Reversed.
Williams, for the plaintiff in error.
Wirt, Contra.
OPINION
Judge Roane
Wednesday, December 8th, 1813, JUDGE ROANE pronounced the court's opinion, that the first count in the declaration is defective in this, that no consideration is set out to support the assumpsit therein mentioned; and that no recovery ought to be had upon the second; the case presented to the court by the jury being that of a nudum factum, on which no recovery can be sustained, and that the judgment of the said County Court is therefore erroneous.
See Hall v. Smith, Young, and Hyde, 3 Munf.
Both judgments reversed, and judgment entered that the defendant in error (who was plaintiff in the County Court) take nothing, & c.
The court (on the 17th of December) set aside this judgment and re-considered the case: but afterwards, viz. on the 29th of March 1814, pronounced the same opinion. --Note in Original Edition.