The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-06-05

pIaintii:l The evidence o&sre6 Of previous usury
paid 70 Hirst was properly excluded. Usury paid
on former occasions is never admitted 70 esta6lish
defence Of usury. The judgment should be affirmed.
wilson r 10ffsn cs. Horton--INGRAHAA, F. j.
There was no error In the ruling decision Of the
Justice The contract between the parties authoriz
after the contract for hiring, was valid. and war
raned the conclusion q .n Justice As. .e plain
till intended to pay for, allow for them out Of the
rent The subsequent payment OF rent, without de-
Quoting although matter for the consideration Of
the Justice, not conclusive against the defend
ant, or q waiver Of claim for such repairs. The
judgment should be affirmed. .It31
bfuiherncs Hyde.-INGRAHAx,F F. 1.-THE Justice
returns that the defendant did not appear the
turn day or the adjourned day. The defendant
shows no excuse for his default in not appearing.
We can never sanction practice that defendant
and his counsel may absent themselves from the
court on the day Of trial. and then eer % an excuse
II such is establs,a "a the law Of this court on APP
pea's vry few Judgments can hereafter be recover.
ed " Justices courts in this city that we should not
ae called upon to reverse on appeal. Judgment o.
frmed.
Of the Code of Procedure was to simplify Tie rules
of pleading and practically dispensing With techn
cal rules and forms, and useless verbge and to in
tr0auce system in which it should be only neces
| sNry to state the substantial matter Of complaint
Pat unless it has been done by section 1872 the Code
| nowhere dispenses with statement Of the facts
which, upon the trial. it is necessary for plaintiff
/ to prove in order to make out cause Of action.
iiberaiity and freedom, as well as brevity and con-
ciseness are alowable but ooseness and uncertainty
are nowhere sanctioned. First. then, 1t was neces
sary before the Code, In declaring on promissory
note against the maker that the plaintiff should
aver the making Of the note-the promise contained
therein or implied thereby-the facts which consti
tuted the plaintiff the holder, promisee, or person
promise contained in or implied from the making of
the note. These all matters of substance, and
indispensable to good declaration, and such mat
tiers are not dispensed with by the Code, except
so far as the section above referred to mo- 1922 has
introduceda new practice Tested by these rules, the
complaint in this case appears to me defective. 1t
and delivered to the painti the promissory note Of
which copy is set forth, and that II is payable to
the order Of the plaintiff and endorsed by him
that there is due and owing the said plaintiff
the second day Of September" The making
by the defendant is avered The delivery
to the plaintiff, payable to his order, is
the plaintiff the holder, and emitting him to enforce
the cause Of action, If any. In conformity with mo.
dern decisions, it may be said that an averment of
making and delivery Of the writing, and giving its
sufficient averment of the promise BY the defendant,
though it was formerly held otherwise. See Bel.
Abr. Tit. Assumpsit, F.; Tapnt, 2l7, Morris ct TX
ya. Norfolk; New R., q Pros. 4 p.;) 81 Mount unit
only remaining requisite is the allegation Of the
breach of promise. This need not be averred in any
particular form, but it must be in such form that it
charges default of performance OF the promise, and
charges that default upon the defendant; and in
such wise that 1t may be met by distinct counter
allegation, so as TO create material issue. Thus,
an averment that the defendant hath not paid the
sum mentioned in the said note-and in general rs
stated by Gritty, Il Chit. Pl $3.50 the breach
should be assigned in the words of the contract,
though it is sufficient to assign the breach in words
containing the sense and substance Of the contract
Now in this il ia aVp1nd that the defendant
hath not paid or hath not promscn any
form; nor even that the money mentioned In the
note has not been paid, or that it remains unpaid.
The pleader says that the gum ia due and owing to
the plaintiff. This is the statement of mere legal
inference from breach which is not averred at all
But even this is not charged upon the defendant
He does not aver that the said sum is due and owing
to tie plaintiff from the defendant To warrant the
legal inference that the money is due and owing, it
is necessary to the promise and the breach oil il
by the defendant 1Sr without both OF these 40 such
the argument that the possession of the note and its
production was sufficient to raise the implication
that 1t was not paid. That may be conceded, but
that only goes to the mode in which the non payment
be proved not to show that averment Of nonpay
ment Is unnecessary. A plaintiff must aver the
facts essential to his right Of rscovery-the mode
the plaintiff here has failed to put the defendant in
default by an aveIment of any breach of contract,
or any, facts amounting to such breach.
complaint was well taken, unless his COM
plant can be sustained by section 1872 Of the
Code. Second. By section l62 it is provided that
payment of money only, It shall be sufficient for a
party to give cosy of the instrument and to state
that there is due to him thereon from the adverse
party specified sum, which he claims" l agree
plaintiff seeks to avail himself OF the privilege given
by this section he must conform to its requirements
cannot be allowed to say that the Legislature have
relaxed or dispensed with the former mode OF de-
a npcfr mt ndU tint
and now the Court maydspense with compliance with
the rules required in the substitute ITSELF The sum
claimed is neither alleged to be due the note nor
to be due from the defendant The defects in this
not, think, have hesitated to allow an amendment
even after this demurrer was interposed, without
costs. The Court have no disposition to withhold in
diligence, or encourage objections that are trifing
OF unsubstantial but there must be some rules Of
pleading and. practice, and If 80 they must be
maintained. think the order sustaining the de-
murrer and ordering judgment for the defendant,
should be affirmed.
Bother rs. -WooDRurF, il think this
judgment should be reversed. The plaintiffs claim
as appearing by his complaint, proceeds upon one
Of three grounds. First That the voyage for which
he shipped had terminated by reaching port Of
discharge. Second, That the master Of the vessel
discharged him at Savannah. Third, That the YES
eel when at Savannah was unseaworthy, and the
were therefore not bound to return In her to
New York. The testimony does not exhibit any
conflict or contradictions upon either of these
grounds of claim. All the evidence is to the same
ehect, SO far as it bears upon these questions, and
concurs in dsprovng rather than establishing either
OF these grounds Of recovery. First, Savannah was
not the port for which the ship with her cargo was
bound, or for which she cleared from the West In
dies That port was not visited voluntarily for any
purpose. Being dismastcd in gale the ship through
necessity put into Savannah for repairs This was no
deviation, and did not operate Us Termination of the
yoy age; nor was any deviation alleged as ground
for claiming discharge. Second-The proof is
positive and uncontradicted that the captain did not
diseha &c the seaman, but did ell that he could TO
duty. Third-The proof is equally clear that the
snip was seawoithy, and was so pronounced upon
tLe survey had In Savannah, upon which ii was GER
thed that she was in fit and suitable condition t.
continue her voyage with safety-and of this there
| ls no contradiction. This case, therefore, upon
either of these grounds, does not prevent an exam
pie OF a finding by the Court below upon question
of fact mon doubtful or conflicting eridencn Thera