Gourdin v. Read

44 S.C.L. 217

• Court: Court of Appeals of South Carolina
• Decided: January 15, 1857
• Status: Published

Opinion

Curia, per'O’Neall, J.

In this case, I bave seen no reason to alter tbe opinion expressed on the rule.

It is true tbe plea of non est factum, merely puts in issue tbe execution and legal validity of tbe bond.

But our practice Has become inveterate to assess tbe damages on tbe condition of tbe bond at tbe time tbe factum is tried and established.

It is a very convenient practice, and ought not to be disturbed.

In this case tbe jury ought to have found'the interest, but having refused to find it, it follows that tbe plaintiff’s only remedy was by a motion for a new trial on that ground. But be failed to give notice properly, and is thereby concluded.

He cannot make that ground on tbe appeal from my decision, on tbe rule.

Tbe motion is dismissed.

Wardlaw, Withers and Whither, JJ., concurred.

Motion dismissed.