Bailey's Admx. v. Gleason

<p>Appeal, No. 129, Jan. T., 1902, by defendant, from judgment óf C. P. Warren Co., Dec. T., 1899, No. 23, on verdict for plaintiff in case of Ada A. Barnes v. Pickett Hardware Company, Limited.</p> <p>Assumpsit on a promissory note. Before Criswell, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court refused binding instructions for defendant.</p> <p>Verdict for plaintiff for $7,000, upon which judgment was entered for $6,714.90, all in excess having been “remitted.</p>

<p>Appeal from tbe second judicial district, Ada county.</p> <p>Action commenced in tbe district court upon a promissory note for tbe recovery of a sum witbin tbe jurisdiction of tbe probate court. Tbe plaintiff bad judgment.</p>

<p>Error to the Circuit Court of Russell.</p> <p>Assumpsit by the plaintiff, against the defendant in error, on several promissory notes. The defence was, that the notes were usurious.</p> <p>The defendants being examined as witnesses, the plaintiff objected to their proving any thing but the rate of interest, but the Court permitted them to prove the entire consideration, embracing payments made by them, before their notes were given, which were but the renewal of other notes, given for borrowed money, to all which the plaintiff excepted.</p> <p>There being proof conducing to show, that the first note of defendants, bought by plaintiff, was made for the purpose of obtaining a usurious loan, the plaintiff’s counsel moved the Court, to charge, that if this note was purchased by plaintiff, without any knowledge of the purpose for which it was made, and without intent to violate the law against usury, plaintiff was entitled to recover the amount of said note, which charge the Court refused to give, and plaintiff excepted.</p> <p>There was also proof conducing to shew, that one from whom the beneficial plaintiff bought the notes, after obtaining them, called on the defendants for payment — that defendants had previously objected to paying, on account of the usury, but on this occasion, told the holder of said notes, that if he would wait with him until the end of year, he would pay the note, and legal interest — that the holder did wait accordingly. Upon this proof, the plaintiff asked the Court to charge, that if the defendant had agreed with the nominal, or beneficial plaintiff or the holder, from whom the notes were bought, upon consideration of time given, to pay the principal and legal interest, and time had accordingly been given, the plaintiff was entitled to recover the principal and legal interest; which charge the Court refused to give, and the plaintiff excepted. The jury found for the plaintiff one dollar, for which the Court rendered judgment.</p> <p>The er

<p>Error from the Circuit Court of Hinds county.</p> <p>The facts are accurately set out in the argument of the Messrs. Briggs.</p> <p>The Mississippi and Alabama Railroad Company, suing to the use of Robert Jaffray, instituted an action of assumpsit to the May term, 1839, of Hinds Circuit Court, against Grimball, Long & McGowan, on a promissory note for $500, dated September 7th, 1837, and due at four months, made by said defendants, and one Trahern, who was not sued.</p> <p>At the return term, plea of the general issue was filed for all the defendants.</p> <p>At the September term, 1840, the cause was continued under the sixty day rule for costs, upon motion of the circuit clerk and sheriff.</p> <p>This rule was not complied with, the security for costs was not given.</p> <p>On the 4th day of January, 1842, judgment was entered up in favor of Brandon Bank use- v. Grimball, Long & Me Gowan, for $660 ; verdict having been found.</p> <p>McGowan has sued out his writ of error, in the names of all the defendants, and bis writ of “summons and severance,” against Grimball & Long, has been returned executed.</p> <p>As the points of practice under the sixty day rule, as it is commonly called, arise daily, the attention of the Court is called to the fact exhibited in the record, that a rule on the plaintiff, requiring security for costs, was not complied with, and its opinion solicited as to the construction of the statute. How. & Hutch, p. 587.</p> <p>And whether, at the expiration of the sixty days, if the rule be not complied with, the case must not go off at all events.</p> <p>And whether, if the benefit of the rule may seem to have been waived by the defendants, whether this waiver, by the defendants, can suffice to keep a cause on the docket, when this rule was granted in favor of the officers of Court.</p> <p>But whatever may be the view taken of this matter by the Court, there is one error which is incurable, viz. : The verdict was obtained by, and a judgment render