Cooke v. Simms , 2 Va. 39 ( 1799 )

PENDRETON, President,

delivered the resolution of the Court.

The objection to the declaration for want of laying a promise directly, if stirred by the counsel on the former argument does not appear in our notes. We know it was not considered by the court; but the case was decided upon other, points which are unnecessary to be considered if this be against the plaintiff.

*The declaration is, that the defendant made the note, which it recites in Haec Verba, without alleging any other promise than that contained in the note itself; and the question is, whether, independent of the act of parliament in England and of our act of Assembly (neither of which apply,) an action on the case will lie on a promissory note singly, without adding a promise?

The cases produced, and two others coming more directly to the point Clerk v. Martin. 2d Ld. Raym. 757, and Burton v. Souter in the same book 774, prove that it will not: but that the declaration must lay an indebitatus assumpsit according to the form in the attorney’s practice in the K. B and give the note in evidence.

Although it is difficult to justify the rationality of this opinion, yet since it is the law, and as such has been recognised by this Court in former cases, it ought not to be stirred again. Eor my own part I can yield to it, without reluctance, as a point of little consequence in this country, where an action of debt is usually brought.

' This count in the declaration then is bad; and judgment is to be entered for the defendant upon the demurrer. But what is to be the consequence? Is a final judgment to be entered for the defendant, as if this was the only count, when there are three others, on which there has been no decision by court or jury? ' Or shall our entry be, that the plaintiff take nothing by this count, but the defendant as to that, go without day, and recover his costs occasioned thereby; and that the cause be remanded for further proceedings on the other three counts, so as to enable the plaintiff to recover, if he can support his action upon either of them?'

Our present impressions are that the latter is the proper mode.

*The following judgment was after-wards entered.

“The court is of 'opinion that the judgment of the said District Court is erroneous. Therefore it -is considered that the same be reversed and annulled &c. and this court proceeding to give such judgment as the said District Court ought to have given, is of opinion that the judgment of the said Court of Hustings is erroneous, in this, that the law is for the appellant on the demurrer joined to the replication of the ap-pellee, to the appellants plea put in to the first count in the appellees declaration, which as to that count is insufficient to maintain the appellees action. Therefore it is further considered that the said judgment be also reversed and that the appellee take nothing by the said first count, &c. And the cause is remanded to the said District Court for further oroceedings to be had therein as to the other counts contained in the declaration.”