Burton v. Kellum

1 Del. Cas. 83

• Court: Delaware Court of Common Pleas
• Decided: November 15, 1795
• Status: Published

Opinion

Per Curiam. Bassett, C. J.

If this plea is wrong, the courts have been five hundred times since my remembrance, for I think I have known non infregit conventionem put in that many times. I very much doubt Mr. Morgan’s law unless we had his authorities. (Here I offered to show the same law in Comyn’s Digest, and opened the place.) But it is a rule that he who commits the first fault in pleading, judgment shall be against that man. Suppose a good pida and bad declaration judgment shall be against the plaintiff, but if the narratio is good, plea bad, and replication good, judgment shall be against the defendant and so on!! (Here the Chief Justice cited authorities from his notebooks on this subject.) In this case the narratio is good, the plea acknowledged bad, then your verdict will be accordingly, and after verdict the record will be cured.* ² (See 1 Str. 303 confirmatory of this.)

Verdict for plaintiff. £ [-] ³ damages. N. B. The jury said they were entirely governed.

2 The following lines in the account of this case, being at present illegible in Wilson’s Red Book, are taken from the copy of Wilson’s report found in Wells’ Notebook, 10S.

3 Blank in manuscript.