Jackson v. Berry

Court of Appeals of Kentucky

Jackson v. Berry

6 Ky. 85, 3 Bibb 85, 1813 Ky. LEXIS 47

CourtCourt of Appeals of Kentucky

DecidedJune 3, 1813

StatusPublished

Cited by1 cases

This text of 6 Ky. 85 (Jackson v. Berry) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jackson v. Berry, 6 Ky. 85, 3 Bibb 85, 1813 Ky. LEXIS 47 (Ky. Ct. App. 1813).

Pincite

Opinion

OPINION of the Court, by

Ch. J. Boyle.

rThis was an action of assumpsit upon a note without seal for the payment ot property. The declaration alleges the note to have been made upon a valuable consideration, without setting forth what the consideration wasi* It also alleges that the property was payable on request, and states a special request and refusal to pay. The defendant appeared and offered a plea denying the' special request laid in the declaration 5 but the plaintifF objected to filing it, and the court sustained the tion, to which the defendant excepted. An interlocutory judgment by nil dicit was then taken, and a writ of inquiry being executed a final judgment was given against the defefidMt, to which he prosecutes ⅜⅛ of error.

Tyro questions arise ⅛ this case — 1st, Whether the consideration of the promise laid in the declaration ⅛ sufficiently alleged ? 2d, Whether the plea offered By the defendant ip the action was substantially a good one ? Upon neither of these questions do we entertain any doubt. That an action will not lie upon a note for the 'payment of property, without averring a consideration, is too well settled tq admit pf controversy; and it is evident wherever it is necessary to aver a consideration, tl^at it must he set forth, as welj that the court hiaf judge of the. sufficiency pf the consideration, as that the defendant may be apprised of the nature and founda-r tion pf the plaintiff ’s demand, and be therehy enabled to meet it. i'".

The plea. We think, ⅛ substantially good. ‘ A special request was in this chse necessary to give to the plaintiff a right of action, and ya? consequently traversable* It is true that according to ffee mudern practice the de-[86]*86fendaat ajightyutider. the general issue, put the plaintiff to the proof of such a request ; but it does ,not follow that it jni¿t not be traversed by- a special plea : for many thinjrwhichmay bp given in evidence under the general issue, may also be specially pleaded ; and this, we apprehend, is of that description.-

The judgment must be reversed with costs, and the cause remanded that new proceedings may be had not inconsistent with the foregoing opinion.

Free access — add to your briefcase to read the full text and ask questions with AI

OPINION of the Court, by

Ch. J. Boyle.

rThis was an action of assumpsit upon a note without seal for the payment ot property. The declaration alleges the note to have been made upon a valuable consideration, without setting forth what the consideration wasi* It also alleges that the property was payable on request, and states a special request and refusal to pay. The defendant appeared and offered a plea denying the' special request laid in the declaration 5 but the plaintifF objected to filing it, and the court sustained the tion, to which the defendant excepted. An interlocutory judgment by nil dicit was then taken, and a writ of inquiry being executed a final judgment was given against the defefidMt, to which he prosecutes ⅜⅛ of error.

Tyro questions arise ⅛ this case — 1st, Whether the consideration of the promise laid in the declaration ⅛ sufficiently alleged ? 2d, Whether the plea offered By the defendant ip the action was substantially a good one ? Upon neither of these questions do we entertain any doubt. That an action will not lie upon a note for the 'payment of property, without averring a consideration, is too well settled tq admit pf controversy; and it is evident wherever it is necessary to aver a consideration, tl^at it must he set forth, as welj that the court hiaf judge of the. sufficiency pf the consideration, as that the defendant may be apprised of the nature and founda-r tion pf the plaintiff ’s demand, and be therehy enabled to meet it. i'".

The plea. We think, ⅛ substantially good. ‘ A special request was in this chse necessary to give to the plaintiff a right of action, and ya? consequently traversable* It is true that according to ffee mudern practice the de-[86]*86fendaat ajightyutider. the general issue, put the plaintiff to the proof of such a request ; but it does ,not follow that it jni¿t not be traversed by- a special plea : for many thinjrwhichmay bp given in evidence under the general issue, may also be specially pleaded ; and this, we apprehend, is of that description.-

The judgment must be reversed with costs, and the cause remanded that new proceedings may be had not inconsistent with the foregoing opinion.

Cite This Page — Counsel Stack

Bluebook (online)

6 Ky. 85, 3 Bibb 85, 1813 Ky. LEXIS 47, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-berry-kyctapp-1813.

Opinion

Related

Cite This Page — Counsel Stack