O'Neal v. Kittredge

85 Mass. 470

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1862
• Status: Published

Opinion

Bigelow, C. J.

We can see no defect in this declaration. The plaintiff was not bound to set out the precise sum which he might be entitled to recover upon the judgment declared on. That would depend on the state of the evidence at the trial. The cause of action, to wit, the judgment, is described with substantial certainty and precision. Strictly speaking, if any payment had been made, which reduced the amount due on the judgment, it was matter in defence, which the defendant was bound to aver and prove. Therefore he has no reason to complain that the plaintiff has declared only for a balance, instead of setting put a claim for the whole amount for which the judgment was originally rendered.

Demurrer overruled.