
    Harrison & Co. against William M‘Kinney.
    
      Charleston District,
    
    
      1802.
    
    A t>are ac-knowledgment of the justice of a debt by a defendant where no sum is mentioned, is not sufficient to warrant a jury to found a verdict upon. There must be a sum certain men-tí >ued, or some document shewn to him, by which it may be rendered certain, before aj nry can give any specific sum.
    CASE for money had and received. Verdict for plains tiffs. Motion for a new trial.
    ■ In support of this action, a witness, John Calhoun., was produced, who swore he went with the sheriff’s deputy to point out the defendant, who said it was a just debt, and he would pay it before he left town; but the witness did not know the amount of the debt, nor the precise sum sworn to. There was an affidavit of the debt annexed to the writ, but it appeared it was appended to it after this acknowledgment of the defendant.
    For the plaintiffs it was alleged, that the debt was substantially proved by Calhoun, the witness, and the exact sum could be rendered certain by reference to the writ and the affidavit annexed to it.
    For the defendant it was argued, that as no precise sum was mentioned by him when this acknowledgment was made, the jury had no rule to go by ; no definite sum was proved; consequently, there was a total failure of testimony or proof, so as to enable them to find any specific sum, or the quantum of the plaintiff’s demand. That the sum could not be rendered certain by reference, because it appeared from the inspection of the writ and affidavit, that the latter was annexed after the writ was served ; and as it was not before the defendant when he made the acknowledgment, he could not possibly have made any reference to it.
    The presiding Judge (Giumke) left the case to the jury, to determine whether the defendant referred to the sum mentioned in the affidavit, or not; and if they should be of opinion he did, then they ought to find for the plaintiffs j but if not, then for the defendant. •
    
      M-Credie, for plaintiff, Cheves, for defendant.
    The jury, however, found for the plaintiffs the amount @f the debt mentioned in the affidavit.
    Mr. Cheves now moved for a new trial,
    on the ground that the verdict was against law, inasmuch as there was no evidence to warrant it. The action was for money had and received, and the only evidence was, that defendant said it ■was a just debt; but what that debt was, or to what amount, there was not one tittle of evidence, nor any document by which it could be rendered certain by reference, at the time when this acknowledgment was made by the defendant.
   The Judges

were unanimously of opinion, that the proof in this case, was too vague and indefinite for the jury to found any verdict upon ; it was clearly a finding without evidence, for none appears to have been offered of the sum due at the time of acknowledgment; nor was there any document mentioned, to which, by reference, the amount could be rendered certain. It is said, there was an affidavit annexed to the writ, which mentions the exact sum due ; but it also appears, that this affidavit was annexed to the writ after the service and after the acknowledgment made by the defendant, so that it formed no part of the proceedings in the cause at that time ; and therefore it could not be referred to, as the defendant was totally ignorant of it.

Besides, there is something mysterious in this affidavit being annexed after the service of the writ; for it is well known to be the practice, to endorse affidavits of the subsisting debt on, or to annex them to, the original writ before service, as a rule to the sheriff in taking bail, but never afterwards; to say no more of it, it was a very irregular mode of proceeding.

Rule for new trial made absolute.

Present, Gexmke, Johnson, Thesevant and Brevaru...  