Abby v. Ferguson

17 Ky. 99, 1 T.B. Mon. 99, 1824 Ky. LEXIS 156

• Court: Court of Appeals of Kentucky
• Decided: October 13, 1824
• Status: Published

Opinion

Opinion of llic Court, by

Judge Owsí.wst .

THIS-writ of error is brought to reverse a judgrgent. recovered by Ferguson, in an action of assumps-it, \vhich was brought against him in the court below, by Abby.

The judgment was rendered by the court upon a demurrer put in by Abby, to two pleas which were filed by Ferguson; so that the case must turn, in ibis court, upon the question, whether or not cither of those pleas coatains a valid harto the action of Abby; for, if either plea contains sufficient matter to bar'tíwpte&íon, as its truth is admitted by the demurrer, the court must have been correct in rendering judgment against Abby, though, in point of law, the facts alleged in the other plea be admitted to form no available defence to the action.

Plea that the assumpsit charged in the declaration was made without any consideration, is now good fbnee madein a^lea is™ vailable on the general "ood obiec-a lion at common law, qn murrer Since our - ^ensin0’ wkh fonníifpl'ead-ing, any mat-the actiotíarS may be spe-daily pleaded, tho’ good al issue! Triplett and Crittenden, for plaintiff,

And that one of the pleas alleges sufficient matter, if-true, to bar the action, we apprehend, cannot be seriously doubted. The plea to which we allude, is that which alleges the assumpsit charged in the declaration to have been made without any consideration whatever.

^ *S 1301 ^n*-enc^cc^ ^0 srl3b that the pR-a be SUS-Gained upon the technical rules of pleading at common law. Itcontains no defence which might not he avail-Lng qn the general issue; and, perhaps, at common law, wou^, upon that ground, be held insufficient upon a special demurrer.

But, by an act of the legislature of this country, objectlons t° the form ofpleadingare done away; and by the now existing law, any matter that will bar an action, maybe employed in defence, by special plea, although it might be availing on the general issue,

L R then true, that in point of law the matter alleged in the plea forms a bar to the action? That it does, recLu'r£s onb' to t>e Slated, to command (he assent of alt w^° Pretend to any knowledge of legal principles; for there is np rule better knpwn, and none more univer-sally recognized by legal writers, than that which rcquires a consideration oí some sort, for every promise or assumpsit upon which an action can be sustained.

The judgment must, therefore, be affirmed with costs.