Harrison v. Cassity

Judge Minor delivered the opinion of the Court. As to the first assignment- — -no consideration is shewn iri the first count, and it is deemed insufficient. We are not satisfied even that the statement of title in the second count is defective. If the sale of the- mare had been completed, the delivery was not necessary to the right of action for the price. Although the statement may be defective, it is evidently cured by the verdict. In the English Courts it seems to have been considered as a settled rule in civil actions, that where there are several counts in the declaration, entire damages assessed, and one count is bad, it shall be fatal in arrest of judgment or on writ of Error. The decisions of the Courts in the several States of the Union sustaining this principle are numerous; but so far as known to us, all such have been made in actions for slander. In actions of this description, wherein one of several counts* the words and matter set forth do not afford a legal ground of action, and entire damages have been assessed, it may be fairly inferred that the Jury have taken into view nil the grievances which the plaintiff has charged in his declaration, and that they may have assessed damages for a matter on which an action could not be sustained. But the reason and principle of the rule do not apply to actions on contract, where contracts of the same nature are set out in different counts, or to a case like the present, where the first count cannot be otherwise understood than as inténded to set out in another form the same cause of action which is more fully shewn by the second. If in the same count there are two distinct allegations, one actionable and the other not, as a promise with and a promise without consideration, the Court, after verdict, will intend that damages were given for the actionable part only. 2 John. 443, 287. 4 John. 280. Is not the [294] present case within this principle ? In the first count it is averred that the defendant, on the 6th of October, 1808, be¡ng indebted to the plaintiff in the sum of $300, promised to pay the same. In the second, that the defendant on the same day being indebted to the plaintiff in another sum of #300, being the price of a mare sold, promised to pay the same. In April, 1823, the Jury find a verdict for the plaintiff, and assess his damages to #371. Can the mind by any process of reasoning be forced into the conclusion that damages were assessed for more than what was proved to be the price of the property sold and interest' thereon ? In the case of Grant against Astle, (Doug. 730,) Lord Mansfield, while he yields to the doctrine now contended for on behalf of the plaintiff in Error, laments that a rule so ill-founded and inconvenient should ever have been established on the fictitious reasoning that the Jury have assessed damages on all, though in fact they never thought of the different counts. In some of the States of the Union, the mischiefs of the English doctrine have been.guai’ded against by Statute. I know of no American decision on a case of contract sustaining it. Its inconvenience and injustice appear to have been felt-and' lamented by’the highest judicial authority of the country in which' it had somehow acquired the . obligatory force of a “ settled rule.” This Court is now, for the first time, called on to recognize, I may say to establish, it as a rule of practice in this State. And with a full sense that it has no foundation in sound principle, that it is inconvenient, and that in its application it may work great injustice, surely we are not bound by the acknowledged errors of the most respectable and learned tribunals to establish it here. The second assignment relates to the entry of the verdict. It has been several times decided by this Court, that our Statute of jeofail renders such an entry as sufficient to shew the determination on the issues joined, as if it had been made technically according to the rules of clerkship. As to the remaining assignments — by reference to the Record, the Act of Congress establishing the territory of Alabama, the Constitution of the State, and to the Acts of 1819, Laws Ala. 190, s. 5—476, s. 4, it will at once be seen that they cannot be sustained. It is the opinion of a majority of the Court that the judgment of the Circuit Court be affirmed. Judges Sajfold, Ellis, and Crenshaw concurred. — Judge Gayle dissented. ' The Chief Justice having been of 'Counsel, gave no opinion. -