Barber v. M. Levy & Sons

Mississippi Supreme Court

Barber v. M. Levy & Sons

73 Miss. 484

CourtMississippi Supreme Court

DecidedOctober 15, 1895

StatusPublished

Cited by2 cases

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Bluebook

Barber v. M. Levy & Sons, 73 Miss. 484 (Mich. 1895).

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Opinion

Woods, J.,

delivered the opinion of the court.

The concluding clause of § 573, code of 1892, clearly recognizes the jurisdiction of courts of law to entertain suits on injunction bonds. The proper interpretation of this clause was declared in Davis v. Hart, 66 Miss., 642, following what was said in Goodbar v. Dunn, 61 Miss., 627. In the latter case it was said by this court: “The only purpose and effect of the last clause of the section was to exclude the conclusion that the remedy provided by the section was a denial of the right before recognized to sue on the bond.”

The action of the court in overruling the demurrer, however, was erroneous, for the fifth cause of demurrer was well taken. The action was one for recovery of statutory damages purely, and the declaration failed, to negative the exception to the general clause of the statute. The pleading avers the amount of the debt, and demands the statutory damages on that sum without averring further that the value of the property the sale of which was restrained, was not less than the amount of the debt. In Stephens on Pleading, 443, the rule of pleading in such cases is thus stated: ‘ ‘ But if the exception itself be incorporated in the general clause, then the party relying on it must, in pleading, state it with the exception, and, if he [487]*487state it as containing an absolute unconditional stipulation, without noticing the exception, it will be a variance. When there is an exception so incorporated with the enacting clause that the one cannot be read without the other, then the exception must be negatived.” The reason of the rule is said by the same author to be this: Unless the exception in the enacting clause of a statute is negatived in pleading the clause, no cause of action appears in the declaration when compared with the statute.

This rule seems to be universally recognized in both civil and criminal pleading, both in the English courts and those in the United States. It was clearly recognized and followed in this state in Kline v. State, 44 Miss., 317. See 18 Am. & Eng. Enc. L., 571, with note 13. See, also, Bloodgood v. Railroad Co., 18 Wend., 9.

Reversed and remanded.

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Woods, J.,

delivered the opinion of the court.

The concluding clause of § 573, code of 1892, clearly recognizes the jurisdiction of courts of law to entertain suits on injunction bonds. The proper interpretation of this clause was declared in Davis v. Hart, 66 Miss., 642, following what was said in Goodbar v. Dunn, 61 Miss., 627. In the latter case it was said by this court: “The only purpose and effect of the last clause of the section was to exclude the conclusion that the remedy provided by the section was a denial of the right before recognized to sue on the bond.”

The action of the court in overruling the demurrer, however, was erroneous, for the fifth cause of demurrer was well taken. The action was one for recovery of statutory damages purely, and the declaration failed, to negative the exception to the general clause of the statute. The pleading avers the amount of the debt, and demands the statutory damages on that sum without averring further that the value of the property the sale of which was restrained, was not less than the amount of the debt. In Stephens on Pleading, 443, the rule of pleading in such cases is thus stated: ‘ ‘ But if the exception itself be incorporated in the general clause, then the party relying on it must, in pleading, state it with the exception, and, if he [487]*487state it as containing an absolute unconditional stipulation, without noticing the exception, it will be a variance. When there is an exception so incorporated with the enacting clause that the one cannot be read without the other, then the exception must be negatived.” The reason of the rule is said by the same author to be this: Unless the exception in the enacting clause of a statute is negatived in pleading the clause, no cause of action appears in the declaration when compared with the statute.

This rule seems to be universally recognized in both civil and criminal pleading, both in the English courts and those in the United States. It was clearly recognized and followed in this state in Kline v. State, 44 Miss., 317. See 18 Am. & Eng. Enc. L., 571, with note 13. See, also, Bloodgood v. Railroad Co., 18 Wend., 9.

Reversed and remanded.

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