Malone & Co. v. Hathaway

Supreme Court of Alabama

Malone & Co. v. Hathaway

3 Stew. 29

CourtSupreme Court of Alabama

DecidedJuly 15, 1830

StatusPublished

Cited by2 cases

This text of 3 Stew. 29 (Malone & Co. v. Hathaway) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Malone & Co. v. Hathaway, 3 Stew. 29 (Ala. 1830).

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Opinion

By LJPSCOMB, Chibs' Justice.

The only point insisted on by the plaintiffs in error is, that the judgment by nil dicit should not have been final, but that a jury should have been empannellod to assess damages. It is said that this case does'not come within the provisions of the act of assembly makingjudgment by default, non sum informa-tus, or nihil dicit final, when the action is founded on any writing ascertaining the sum due; that the writing here is not the foundation of the action, but only an inducement to it. If the suit had been between the maker and the payee, there would have been some plausibility -in-the objection taken by the plaintiffs in error. It was formerly held that a promisory note did not of itself import a consideration, and therefore could not be the foundation of an action; but this doctrine has not been sustained by this Court, and we have held, as well under the influence [31]*31■of modern English adjudications, as our own statute, that promissory note does, of itself, imply a sufficient considé-' ration to support an action. >

The indorsement of the note put it in circulation, and made it a bill of exchange. An indorsement on a bill at all times implied a sufficient consideration; every in-dorser is a new drawer of the bill, and his indorsement is a sufficient foundation for an action, if the necessary steps to charge him have been previously taken. The judgment by nihil (licit is an admission at law that all those requisite steps had been taken; and acknowledges the cause of action. We are all of opinion that the judgment by nil (licit in this case was clearly within the statute, and final without the necessity of resorting to a jury to assess damages. It is further assigned for error that the action is assumpsit, and the judgment in debt. It has been often decided by this Court, under our statute of jeofails, that if the amount is correct; it is no ground of reversal though it should be Improperly called debt, or damage.

Judgment affirmed.

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By LJPSCOMB, Chibs' Justice.

The only point insisted on by the plaintiffs in error is, that the judgment by nil dicit should not have been final, but that a jury should have been empannellod to assess damages. It is said that this case does'not come within the provisions of the act of assembly makingjudgment by default, non sum informa-tus, or nihil dicit final, when the action is founded on any writing ascertaining the sum due; that the writing here is not the foundation of the action, but only an inducement to it. If the suit had been between the maker and the payee, there would have been some plausibility -in-the objection taken by the plaintiffs in error. It was formerly held that a promisory note did not of itself import a consideration, and therefore could not be the foundation of an action; but this doctrine has not been sustained by this Court, and we have held, as well under the influence [31]*31■of modern English adjudications, as our own statute, that promissory note does, of itself, imply a sufficient considé-' ration to support an action. >

The indorsement of the note put it in circulation, and made it a bill of exchange. An indorsement on a bill at all times implied a sufficient consideration; every in-dorser is a new drawer of the bill, and his indorsement is a sufficient foundation for an action, if the necessary steps to charge him have been previously taken. The judgment by nihil (licit is an admission at law that all those requisite steps had been taken; and acknowledges the cause of action. We are all of opinion that the judgment by nil (licit in this case was clearly within the statute, and final without the necessity of resorting to a jury to assess damages. It is further assigned for error that the action is assumpsit, and the judgment in debt. It has been often decided by this Court, under our statute of jeofails, that if the amount is correct; it is no ground of reversal though it should be Improperly called debt, or damage.

Judgment affirmed.

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3 Stew. 29, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malone-co-v-hathaway-ala-1830.

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