The enquirer. [volume] (Richmond, Va.) 1804-1815, 1809-05-26

but that not having been done, the Court must
decide according to ligc. There is no aver
ment in this declarations. that the defendant
had done any thing; it is mere recital from
one end TO the other. In case for SANDER, &c.
the form commences with "zrhert as as in
ducement to the action, and concludes with
get" &c. stating hosftipciy what the de-
PENDANT did.-Would the "zuiereas'' in such
an action be good, without the conclusion
Surely not.
1t is said. hwever, by Mr.. Call, that this
precedent is like the common one in inde6i-
t0fns dssumfisif. Not a declaration can be
found, in assumhsif, drawn by the most ie-
norans fieader, where the "guod cum"
goes entirely through. After recitiug the
Cause of action, they always conclude with
a breach of promise, "yet the defendant"
&c. without which, it would be clearly bad.
The law. on this point, has been fully set
tied. A great number of cases exist, both
In England and in this court, where the ex-
lception has been sustained; and if the court
were to decide otherwise now, instead of
studying uniformity, they would study di-
versity.--BafiarGv v. LeavaN, Taylor V.
Rainbow, Hord ". Dishman, and Moore
V. Oa7pney. are all cases in point. Uednes-
day. March Sth, 1909, the judgment of the
District Court was unanimously AFFIRMED.
NOTES. -.
~ The judgement oftbe court below, having
been given for the defendant, and this court hav
ing merely affirmed it, without assigning any red
sons, doubts existed as to the grounds of the de-
c'sion whether upon the merits, or the puoi cua,
or upon both. To remove those doubts, the Re-
porters addressed note to the Judges, stating
the difficulty which had occurred that frequent
applications had been made to them, by gentle
men OF the bar, to know whether the point was
% fan yui,i boI
been entertained from the circumstance that the
court permitted it to be re argued, in this case.
without co,ni'S to any direct decision that qeyy
point j and that it important to the protest.
on to receive the earliest information, how far
the law had been settled. The Judges very po-
htely favored the Reporters with the folio wing
answers
From, fudge Fleming.
In a conference with the Judges, on the point
OF 7uod cum, after the argument of Lo,nGs VS.
Ho,d. understood it to have the unanimous o..
pmion, as IT was my own, to adhere to former
decisions OF the court the subject, il being
better to compel the practitioners to follow pre-
cedents, and conform to law, than that the law
should bend to their loose practice.
From fudge Tucker.
The Reporters were verbally authorised b.
Judge Tucker, to say, that he concurred in the
above statement of Judge Fleming.
FROM fudge Roane.
y. X presents his respects to Messrs. Hsri1,r
y d7uRjOrd. In answer to their note respecting
The decisions ofthe The point ofguod cum
| he begs leave to say. that the question first oc-
Cured IN the court of Appeals, to his kno Wedge
| IN the case of Ballard VS. ycaveH, which has ne
Yer been reported. In that case, two of the jud
ges, (of whom 5. X was one,) were of opinion,
that the defect was substantial. and that it
! was not cured by a verdict, two other Judges
thought otherwise Since the accession of
| Judge fucker to the court, he has adopted the
former opinion, and several decisions have been
given contormably thereto, by the voice of the
| three present acting judges. The grounds of
the opinion OF 3. II. were stated in the said case
OF ballard VS. LeaveL. He has not since seen
cause to change that opinion but understand
ing that some dissatisfaction existed Vi it'll part
OF the bar, touching this decision, and fearing
from various information, that this error was We
ry general. with the profession in this country,
upon the occurrence nttll point again in the case
OF LoandN IS Rord it seemed TO him worthy of
Reconsideration, ON this last ground only, and he
mentioned his ~ish in court that it should be re-
considered. That request acccded To. II
was made bv s. K under the influence of u prin-
icp. stated by one of the Judges, (supposed to
be MI fs'igzetOn) i'll the of Bos1ueR VS. fo.es
| / P9sh 322 SO the; although uniform decisions
Which establish the rules of property, ought
10 be adhered to, yet that he Che judge) did NOT
view them as sacred in points of practice which
should vary experience should evince their
convenience or Inconvenience" In conference
alter this, with the other Judges, as they evinced
no wish to retTact their former opinions, as S. r.
possessed no decisive evidence of the extent of
tins error, anG as, in general it better to com
pei practitioners TO conform to decisions than
that the law should bend to suit loose practice,
he readily acquicsced especially as he had ne
yer dou5ted the correctness OF the opinion, in "a
ference 20 adiudged cases.
is, 1899.
NOTE BY THE REPORTERS.
fhas long been settled, in England, that the