Sirrine v. South Western Railroad

McCay, Judge.

1. There can be no taxes due upon a debt until there is, in fact, a debt in existence. This could not be until there was a breach of the bond. It is not the bond which creates the debt — it is the act, against which the bond is intended to protect. Under the declaration is this case, that breach is stated to have occurred at the death of Nunez. This was after the 1st of June, 1865, and the Act of October 13th, 1870, does not apply to it. What may be proven on the trial may change this date of the breach. All we now mean to say is, that the breach is alleged to have occurred at Nunez’s death, or after June, 1865; sufficiently so, at any rate, to allow proof of such a breach on the trial.

2. It is trifling with the time of the country to permit a demurrer, not good in arrest of judgment, to be made after the case has gone to the jury and the evidence has been fully heard. Properly, such objections ought to be at the first term, but if the parties have kept still until they have had their full time of the country for the trial of the case upon its merits, they have no right to cause all this to be lost on a mere matter of form.

If the motion was good in arrest of judgment, a different rule would prevail, since the same public convenience which denies a demurrer if a verdict would cure the defect, would require that no more time should be spent in doing fruitless acts.

Judgment affirmed.