Brooks v. Delrymple.

the same matters set out in the special pleas. To the special pleas, the plaintiff replied, in substance, as follows: "And the said plaintiff, as to the pleas by defendant secondly and thirdly above pleaded, says, the plaintiff did not implead the defendant &c. for the same identical caus and causes of action," &c. "And the said plaintiff, as to the plea of the defendant by him thirdly above pleaded, and the matters, &c., says, that no verdict or judgment thereon was rendered in said justice's court," &c., and concludes with an issue to the country. The record further discloses that the plaintiff below, on the 10th October, 1844, filed with the court an amended replication, in substance as follows: "And the said plaintiff, as to the plea of the defendant by him secondly above pleaded, &c., says, precludi non, because, he says, that the judg ment of the court before the justice of the peace, in that plea mentiond, was a judgment of nonsuit," &c., and concludes with a verification.

A verdict was rendered in favor of the plaintiff below, for less than $100 and costs of suit, to reverse which the writ of error in this cause is prosecuted. The errors assigned are: 1. That the verdict and judgment being for a less sum than $100, a judgment for costs should have been rendered in favor of Brooks. 2. That the jury rendered no verdict on the issues secondly and thirdly joined between the parties.

By the justices' act of 1841 (Sess. L. 1841, p. 81, sec. 1), original jurisdiction is conferred on justices of the peace in all civil actions wherein the debt or damages demanded do not exceed the sum of $100, excepting real actions, &c., and actions in which the title to real estate shall come in question. An examination of the record shows very conclusively that the title to real estate was involved. The fraud charged upon the defendant below, consisted in representing himself as having title to the land described in the declaration; upon this representation, the plaintiff below parted with his property, and executed the promissory note also set forth in the declaration. It was, therefore, incumbent on the plaintiff, upon the trial in the court below, to show the falsehood of the representation; to do this, he must necessarily have shown that the defendant had in fact no title to the land. It is clear, therefore, that the title of the defendant below to the land in question, must have been drawn in question, and that the justice of the peace had no jurisdiction of the case.

The second allegation of error must have been founded on a miscon

Brooks v. Delrymple.

ception of the state of the pleadings. The second plea was no answer to the declaration; it avers that judgment was rendered as in case of nonsuit, and was, therefore, no bar to a second suit for the same cause of action. The third plea avers that the jury returned a verdict of "no cause of action," and that thereupon judgment as in case of nonsuit was rendered. This last plea might be regarded as good, inasmuch as a verdict upon the merits, rendered by a jury before a justice, would have the same force and effect as a judgment rendered by a justice, when the merits are tried without the intervention of a jury. A verdict of "no cause of action," being sufficient, the words which follow may be rejected as surplusage. The replication is bad; but it is, perhaps, good enough for the pleas. The plaintiff, in his replication to the second and third pleas, avers that he did not implead the defendant for the same identical cause of action; and then, as to the third plea, says, that no verdict or judgment thereon was rendered in said justice's court. The plaintiff might well have disregarded the second plea, as it simply averred that a judgment of nonsuit was rendered against the plaintiff by the justice, which constituted no bar to another suit for the same cause of action. In respect to the third plea, the replication gives two answers: 1. That the plaintiff did not implead for the same identical cause of action. 2. That no verdict or judgment was rendered in the justice's court. Upon which of these propositions the plaintiff intended to rely, does not appear-the record is silent on the subject. The next feature in this masterly exhibition of special pleading, is to be found in the amended replication filed on the 10th October, 1844. How this paper got on the record, we are not advised; we are bound, however, to suppose it rightfully there-more especially as the defendant in error, in his brief, says, that by leave of the court, a new replication was filed. This replication purports to be an answer to the second plea, and avers that the judgment rendered before the justice was a judgment of nonsuit. In other words, the amended replication admits precisely what the plea states, to wit, that there was a judgment of nonsuit rendered before the justice. It is to be noticed, that this amended replication takes no notice whatever of the third plea, which plea, if true, constituted a bar to the action. Nor does it conclude with an issue to the country, but with a verification. To this replication there was no rejoinder, nor was any necessary, inasmuch as the replica

Brooks v. Delrymple.

tion purported to reply to the second plea, which was a mere nullity. Having sketched the somewhat remarkable history of the pleadings in this cause, we are now prepared to determine whether the second allegation of error is well founded. There is some doubt as to whether the amended replication was intended to supersede the first replication, or whether it was intended simply to remedy the difficulty apparent in the first replication-that difficulty consisting in the fact that, in attempting to reply to the second plea, it purports to give a partial answer to the third plea. It seems to be a more sensible view of the question, to consider the amended replication as simply an answer to the second plea-leaving the replication to the third plea to stand. The issues, then, on the record to be tried, were: 1. The general issue. 2. The issue formed upon the matters contained in the defendant's third plea. The record shows a verdict for the plaintiff on the first issue, but is silent as respects the second. This objection will be decisive of the case, unless the finding of the jury on the plea of the general issue, negatives the special plea; if such be its legal effect, then the jury did, in effect, pass on the issue joined on that plea. It seems to me very clear that the jury could not have found for the plaintiff on the plea of the general issue, if the defendant had successfully established his special plea. A verdict for the defendant on that plea, would have authorized a court in directing a verdict for the defendant on the first plea, the general issue, for the obvious reason that such finding necessarily implied that the plea must have been supported, and, if supported, it constituted a perfect defence to the action; and the failure to find for the defendant on the first issue, would be mere matter of form. Thus, if in assumpsit there be a plea of non-assumpsit and payment, and a verdict for the plaintiff on the first issue, judgment may be entered for the plaintiff, although the plea of payment remain undecided: so a verdict for the defendant on the plea of payment, will be sufficient, although the record shows no finding on the plea of the general issue. If, in an action of replevin, there be a plea of non cepit, and property in the plaintiff, or a stranger, a verdict for the plaintiff on the first plea, would not be sufficient, for the reason that such a finding would not necessarily negative the other plea; there would, in such case, be no inconsistency in finding for the plaintiff on the first plea, and for the defendant on the other.

Engle, Administrator, et al. v. Shurts.

Upon the whole, there are errors enough apparent on the record, but none of so weighty a character as to authorize a reversal of the judg

ment.

Judgment affirmed.

ENGLE, ADMINISTRATOR, ET AL. v. SHURTS.

Where a penal statute is repealed, without a reservation or saving clause in favor of penalties that had accrued under it, such penalties cannot afterwards be recovered.

APPEAL from the Court of Chancery. Shurts, on 20th April, 1843, filed his bill in the court of chancery to foreclose a mortgage executed to him by Engle, deceased, in August, 1839. Defendants, by their answer, admitted the mortgage, but insisted it was usurious. A replication was filed to the answer, and testimony was taken by defendants

to prove the usury. The chancellor was of opinion the usury was es

tablished by the proofs, and on 25th June, 1845, made a decree in favor of Shurts for the money actually loaned only, with interest. From this decree defendants appealed.

Gurney, for appellants.

Bacon, for appellee.

By the court, MILES, J. It is insisted by the appellants that the usury is proved, and that it is equitable that the appellee have a decree only for the amount of the mortgage, after deducting not only the amount of the usury, but also the penalty under R. S. 1838, p. 161, sec. 5, that being the law in force when the contract was made.

But before this bill was filed, that part of the statute imposing the penalty for taking usurious interest, was repealed, without reservation or saving clause. Sess. L. 1843, p. 54. In such case the penalty is gone.

Campau v. Fairbanks.

1 Wash. C. C. Rep. 84; 1 Binney 601; 3 Burr. 1456; 1 Black. Rep. 451; 7 Wheaton 551.

The case of Aymer v. Gault, 2 Paige 284, referred to by appellants' counsel, was decided under the revised statutes of New York, containing the usual saving clause; as were also the cases in 4 Wendell 206, 210 and 211. The only questions that arose in those cases, under the statute, was as to the mode of proceeding, and that was expressly required to conform to the new statute.

The statute of 1843 before referred to, also repeals that part of the statute of 1838 by which the defendant was, in an action upon an usurious contract, entitled to recover costs, and confines the recovery of the plaintiff to the amount of the principal and legal interest: and as that appears to be the amount for which the decree was made in this case, we think it must be affirmed, with costs.

Decree affirmed.

CAMPAU V. FAIRBANKS.

The return to a summons in these words, "Served the within by reading personally," the statute requiring it to be served by reading it to defendent and delivering him a copy-is bad, and does not give the justice jurisdiction of the person of the defendant.

CERTIORARI. In August, 1837, Fairbanks sued Campau in a justice's court. The constable made the following return to the summons: "Served the within by reading personally;" to which he affixed the date of the service and subscribed his name. Campau did not appear on the return day, and Fairbanks proceeded ex parte before the justice and obtained a judgment, to reverse which Campau sued out a writ of certiorari from this court.

Tryon, for platntiff in error.

for defendant in error.