Citation Numbers： 1 Morris 197
Judges： Mason
Filed Date： 1/15/1843
Status： Precedential
Modified Date： 10/18/2024
Per Curiam,
The first error assigned by the plaintiff in error, is, that there were no issues made up upon which the case was decided. The defendant below, who is the plaintiff here, had filed two special pleas. To these there were special demurrers and also general replications, broadly traversing the allegations of those pleas, and concluding to the country. The addition of the similiter was a mere matter of form, the omission of which does not render the proceedings substantially defective; especially after going to trial by consent.
The fact, that the demurrers of the defendant in error were undis-posed of, cannot be successfully objected to here. By consenting to go to trial on issues of fact, the party filing the demurrers must be understood as having waived them, for they should have been disposed of before the issues of fact were taken up, if they were to have been considered at all. At all events no objection can be taken by the plaintiff in error, on account of the demurrers to his plea never having been taken up and decided upon.
The other error assigned is that there is no assessment of damages, either by the court, clerk or jury. The record shows that the case was submitted to the court, and judgment rendered for the plaintiff for the sum of one hundred dollars debt, and six dollars and seventy-five cents damages. Now if this submission was in relation to the issue of fact, there has clearly been no error so far as appears from the record. The case was submitted and judgment rendered for the plaintiff below. It is contended there was no assessment of damages by the court; but how does that fact appear 1 The record states no such thing. The cour must have arrived at the amount of the verdict in some manner or other.