Harris v. Lewis , 5 W. Va. 575 ( 1872 )

Maxwell J.

This was an action of covenant on the following paper:

[$200.]

Six months after the ratification of peace between the United States and Confederate States I promise and bind myself, my heirs, &c., to pay to. John T. Harris, his heirs or assigns, the sum of two hundred dollars in-gold, or its equivalent in current funds, for value received. As witness my hand and seal, with interest from date, this 20th day of June, 1864. F. A. Lewis, [seal.]

[Stamp 10 cts.]

There was a trial by jury and a verdict for the plaintiff for $200, damages, w'hich verdict was set aside by the court and a new trial granted. After the new trial was granted the plaintiff filed an amended declaration containing four counts, to each of which the defendant demurred and the first three counts were held void. The defendant then tendered two special pleas to the filing of which the plaintiff objected, but the court allowed them to be filed, and when filed the plaintiff took issue upon them.

The cause was then tried and a verdict found for 'the defendant, on which a judgment was rendered.

The first ground assigned as error is that the court erred in awarding a new trial in this cause. There is nothing in then f' rd to show upon what ground the court acted and in the-absence of anything to show the contrary, we must presume-that the court acted properly.

The second ground is that the court erred in sustaining the-demurrer to the first- three counts of the amended declaration.. Bach one of these three counts avers that the defendant covenanted with the plaintiff in the manner and form following: That the said Fisher A. Lewis, should and would pay to the said John T. Harris, six months after the ratification of peace-between the United States and the Confederate States, for value received, &c. Neither of the counts avers the happening of the event or condition upon which the obligation, was to become due and payable, that is the ratification of peace between the United States and the Confederate States.. The counts were therefore all void and the demurrer properly-sustained.

The next point is that the court erred in permitting the-two special pleas to be filed. By the code, p. 602, § 20, it is-provided that “ the defendant in any action or suit may plead, as many general matters whether of law or fact as he shall, think necessary.” The pleas appear to be in sufficient form,, and no reason is apparent why they were not properly air lowed to be filed.

Nadenbousch & Riddle vs. Sharer & Martin, 2 W. Va. 285, Maggart vs. Hansbarger, 8 Leigh 532.

The fourth point is that the court erred in refusing to permit the bond sued on to go to the jury.

There was a plain variance between the fourth count and. the bond offered in evidence under it, and it was properly rejected.

It is claimed that judgment was improperly rendered against the plaintiff for costs.

Chapter 138, § 8, p. 663, of the Code, provides that except where otherwise provided, the party for whom final judgment is given in any action shall recover his costs.

Final judgment was rendered against the plaintiff which was properly for costs. The judgment complained of will have to be affirmed with damages and costs.

The other judges concurred.

Judgment affirmed.