Hall v. Smith 3 Munf. 550, 17 Va. 550

Hall against Smith, Young, and Hyde.

Argued May 3d, 1811.

1. It seems, that a party, to whom a new trial is granted, may, at the next term, without claiming such trial, file errors in arrest arrest of judgment.

2. In assumpassignor of a deratian for me»t ought to N the' <iedaration; and if it be omitted, judgmentmay be arrested.

3. A count for money had and received, adjudged-good after verdict; although the sum received was-letfc blank.

cry Sec antC) Darby v. Henderson and Duncan administrators of Drummond.

THIS was ail action of assumpsit, in the late district Court of Fredericksburg, in behalf of the appellant, aRainst the appellees, who were merchants and partners.

_The declaration contained two counts. The first, being special, charged the defendants with having assigned a bond (the date, penalty, and condition, particularly set forthj t0 the pla¡ntiffs ; (but without stating any considerationfor the assignment ,•) that suit was brought by the plaintiff thereupon, and judgment obtained; which judgment was afterwards perpetually enjoined by a decree of the county Court of Spottsylvania, by reason of equity which attached in taking the, said bond; “in conseqaence whereof, the plaintiff was ever prevented from n 1 recovering the said debt from the said obligors ; by rea*551son of all which premises, the said Smith, Young, and Hyde, became liable to pay to the said Elisha Hall, the said sum of 164/. 12s, lid., the condition of said bond, together with interest on the same, and the costs of the said suit; and the said defendants being so indebted, in consideration thereof, undertook and promised that they would pay to the plaintiff the said sum with interest and Gosts, when they should thereunto be afterwards required.”

The second was a general count for money had and received, but blanks were left for the sum. The damages were laid at one thousand dollars.

After a verdict for the plaintiff, on the general issue, the parties, by their attorneys, agreed that this suit should not ahate by the death of any party j and a new trial was granted the defendants, on the payment of costs, and on condition that they should produce, at the next trial, the material evidence, or some of it, which was stated in a certain affidavit filed in the cause.

At the next term the defendants moved in arrest of judgment, 1st. Because it appeared, from the face of the declaration, that the plaintiff, after the bond in the declaration mentioned was assigned to him, did not use due legal diligence in pursuing the original obligors;* 2dly„ Because it did not appear that there was any, or a sufficient consideration for the promise laid in the declaration ; and, 3dly. For that the declaration was otherwise insufficient and erroneous.

The district Court arrested the judgment; whereupon the plaintiff appealed to this Court.

Botts, for the appellant.

The judgment, in October, 1805, vvas final to every intent and purpose, except that *552of a new trial on certain conditions. It stood final, ufl*> less the conditions were performed. The Court had no power over it, except upon performance of those conditions. If the judgment was not final, (the time allowed for performance not being limited,) yet the Court could not receive a motion in arrest of judgment at a subsequent term ; for certainly that motion was, in itself, a waiver of. the conditional right to a new trial; because a party cannot obtain a new trial after moving in arrest of judgment.*

But, admitting that the Court might go further back than the judgment in October, 1805, the errors alleged are not sufficient. The assignment being in writing, the plaintiff was not bound to set forth a consideration.(a) If there was none, the defendant should have made the *553objection by plea, or by testimony, on the general issue.(a)

At all events, however, the count is good after verdict; it being only a good case defectively set forth, and not a defective case, for the evidence of a consideration is oil -orth, if not the consideration itself.(b)

lit the first count be defectii'e, the second is sulficie • maintain the action ;(c) and this notwithstanding the blank, (d) The cases of Smith v. Walker, 1 Wash. 135., and Blane v. Sansum, 2 Call, 495., appear to be authorities against me ; but, in those eases, the defects in the declaration were much greater than in this.

Williams, for the appellees.

The motion, in arrest of judgment, was,properly made, though at the next term alter the verdict ; for a new trial was granted on certain Conditions, to be performed at a future term, and this was enough to prevent the judgment from being entered. It is like the case of the Court’s continuing the cause after verdict found, thereby postponing the entry of the judgment. The party’s not taking the new trial, when he thought the judgment ought to be arrested, was correct.

2. The declaration Shows that due diligence was not used in bringing suit against the obligors.

In Mackie’s executor v. Davis,(e) Judge Carrington says, that whether due diligence has been used is a question of fact, not of law ; but this was a mere obiter dictum, not necessary for the decision of that case, in which the only point actually occurring, was, whether the assignor was liable on the ground of the privity of contract between him and the assignee. Í am not precluded, then, from contending, that what constitutes due diligence is a question of law; if it ivas not, great uncertainty would arise. In Tindal v. Brown, 1 Term Rep. 167., and other modern cases, it is expressly decided that such is the rule.

If it be a question of law, it plainly appears, from this *554declaration, that the plaintiff had not made out a cas® °f due diligence ; and, therefore, a demurrer to the first count might have been sustained^ on that ground, as well as the other, that no consideration for the assignment is stated.

3. The assignment’s being in writing does not imply a consideration. Hites, executors of Smith, v. Lewis’s executors,(a) is a case in point to this effect. There is no consideration averred, and it cannot be intended that any was, found by the jury. Rushton v. Aspinall,(b) shows that such a defect is not cured by verdict; the very gist of the action being omitted in the declaration.

4. The general count seems to me to have no ground to support it, being blank throughout. If it be good, no consideration is requisite to the validity of a promise ; for it does not appear whether one penny, or one shilling, or what sum of money is alleged to have been received. There is no case in this Court in which a declaration, completely blank, has been supported.

Botts, in reply.

Mr. Williams's observations concerning the case of Mackie's executor v. Davis, (considering his usual accuracy,) surprises me. In that case Judge Roane observed, “ that due diligence was used by the appellees to recover the money from the obligor, is admitted by the verdict, and, therefore, this circumstance will be considered as forming a part of the case.” How could this have been so, if due diligence was not matter offact ? Hue diligence, in this country, is very different from what is so considered in England. Here, a variety of circumstances always enter into the inquiry.* How, when, and where have those circumstances been announced, as matter of law, to the people of this country ? The case might have been satisfactorily made out to the jury : it should, therefore, be presumed that it was.

The consideration of the assignment was not neces*555sary to be set forth. The uniform course of declaring, in England, is not to state the consideration.* Hundreds of instances may be shown of promissory notes not expressing on their face any consideration, and which are declared upon in like manner. The signature of the drawer to the note is considered enough, In Mackie’s executor v. Davis, all the judges said, an assignment does, of itself, import a debt from assignor to assignee.

The second count is not altogether blank. It charges, that “ the defendants, being indebted to the plaintiff in the sum of-, for so much money before that time received, £s?c., in consideration thereof undertook and promised that they would pay to the plaintiff the sum of ---, when they should afterwards be required.” It alleges that some money was received, though it does not specify how much. It is clearly, therefore, only a good case defectively set out; for we could not have obtained a verdict without proving to the jury the sum received.

January 27th, 1813,