Riley's Administrators v. Ruffin's Executors

OPINION OF THE COURT — nr the

How. I. R. NICHOLSON

We are satisfied, in this case, that'the action was founded on a bond with conditions; that the jury assessed damages without any assignment of breaches, which was improper and incorrect, and ior which the judgment below must be reversed, the cause remanded, and venire de novo awarded, and parties have leave to amend their pleadings.

Judge Smith concurs.

OPINION OF the

How. A. MONTGOMERY.

In this case, I concur in reversing the judgment of the court below,— but for a different reason.

The verdict of the jury is, that they find for the plaintiff the debt in the declaration mentioned to be discharged by the payment of a less sum than the amount of debt declared for. There being no condition to the obligation set out, and breaches assigned, nor any plea under which the jury was authorized to make a deduction from the debt, — they should, if they found for the plaintiff at all, have found the whole debt, and damages for the detention.

I do not think the plea of release can be sustained; as there was evidently no consideration moving between the parties, at the time of its execution; and to make a good, parol release, there must bean actual consideration.