
    Josiah Grover et al. vs. William Gaunt.
    Where to an action on a bond, the defendant pleaded that the bond was given for the hire of a negro for a year, and the negro was taken out of the defendant’s possession on a certain day, before the expiration of the hire by the payee of the bond ; to which the plain tiff replied, in substance, that the contract of hire was, that the plaintiff might, at any time, take possession of the negro by deducting twelve dollars per month for the unexpired time, and possession had been accordingly taken ; to which replication the defendant demurred, and the court overruled the demurrer, and gave judgment final against the defendants for the amount due upon the bond, after deducting the period of the negro’s absence ; held, that the judgment final was erroneous ; the court should have awarded a judgment with a writ of inquiry.
    To a declaration on a bond for payment of money, the defendant plead that the bond was executed for the hire of a negro by the plaintiff to the defendant, from January 1, 1841, to January 1, 1842, and that the negro, during that period, should not be removed from the defendant’s possession ; yet the plaintiff did, on the 3d of May, 1841, take the negro out of the defendant’s possession, by which the consideration of the writing obligatory had failed the plaintiff replied, that when the negro was hired it was agreed between the plaintiff and defendant, that if the plaintiff should want the negro before the first day of January, 1842, the defendant should give her up, deducting twelve dollars per month for the unexpired time ; and that the defendant had the negro until the 3d of June, 1841, without this that the plaintiff agreed that the negro should stay the whole year as averred by the defendant held, on demurrer, that the plea was good in substance and form.
    If the action be founded on a note, and in the pleadings the word “ note ” is used, without words of identification, it will be understood of the note mentioned in the previous pleadings.
    In error, from the circuit court of Adams county; Hon. C. C. Cage, judge.
    This was an action brought by William Gaunt against Josiah Grover, Frederick J.' Bowie, and Edmund Andrews, on a writing obligatory, for $144, dated January 1, 1841, and payable January 1, 1842, to Starkey Gaskins, who assigned it to the plain tiff.
    
      . The defendants Bowie and Andrews appeared and plead ; 1, nil debet; 2, “ actio non, because they say that the said writing obligatory, mentioned in said plaintiff’s declaration, was executed by the several obligors thereto, for and in consideration that Starkey Gaskins would hire and deliver a certain negro woman slave to Josiah Grover, on the first day of January, 1841, at the county aforesaid; and the said Starkey Gaskins then and there contracted and agreed with the said Josiah Grover, Frederick J. Bowie, and Edmund Andrews, jointly and severally, and promised, that the said negro woman slave should and would remain in the peaceable and undisturbed possession of said Josiah Grover, from said first day of January, 1841, to the first day of January, 1842, without her the said-negro slave woman being sent for, ordered, taken, or kept away from the possession of said Josiah Grover, by said Starkey Gaskins, in, for and during the said last-mentioned space of time, to wit, one year at, to wit, the county aforesaid; and the said defendant, Frederick J. Bowie, avers and says, that the said Starkey Gaskins, on the 3d day of May, 1841, at, to wit, the county aforesaid, did, by his own free will and act, rescind said contract, agreement and promise as aforesaid, and did, on said 3d day of May, 1841, then and there send for, order, take and keep away from the possession of the' said Josiah Grover, the said negro woman slave for a long space of time, to wit, from said 3d day of May, 1841, hitherto, at, to wit, the county aforesaid; in consequence of which rescission and breach of contract, and' by reason of which said last premises, the said consideration for which said writing obligatory, mentioned in the said plaintiff’s declaration, was executed and given, has failed and is wanting; and this they are ready to verify ; wherefore, &c.”
    The plea of nil debet was abandoned, and the plaintiff replied to the other plea as follows: precludi non, “ because he says that at the time of hiring the said negro by the said Gaskins to the said Grover, to wit, on the 26th day of December, A. D. 1840, to wit, at the county aforesaid, it was agreed by and between the said Grover and the said Gaskins, that if the said Gaskins should want the said negro before the first day of Jan-nary, A. D. 1842, he the said Grover should give her up, deducting twelve dollars per month from the note, (meaning that said Grover should be entitled to a deduction of twelve dollars for each and every month, till the expiration of the time for which the said negro was hired;) and the said plaintiff avers that the said Grover had possession of and enjoyed the services of the said negro for a long space of time, to wit, from the 26th day of December, A: D. 1840, till the 3d day of June, A. D. 1841, without this that Starkey Gaskins contracted and agreed with the said defendants, Josiah Grover, Frederick J. Bowie, and Edmund Andrews, and promised, as stated in said plea, that the said negro woman slave should and would remain in the peaceable possession of the said Josiah Grover, from the 1st day of January, 1841, to the 1st day of January, 1842, without her (the said negro woman slave) being sent for, ordered, taken or kept away from the possession of the said Josiah Grover by the said Starkey Gaskins, in, for and during the said last-mentioned space of time, to wit, one year, and this he the said plaintiff is ready to verify ; wherefore, &c.”
    To this replication the defendants demurred on three grounds:
    1. That it confessed and avoided by new matter the contract of hiring, and the consideration of the writing obligatory, and yet traverses the contract with an absque hoc, which is repugnant.
    • 2. That it was uncertain in this, that the deduction of twelve .dollars per month was stated to be “from the note,” without showing what note, when, by whom, and in whose favor made.
    3. It admitted the contract of hire, and affirmed in the new matter, that the slave was taken away on the 3d of June, 1841, without traversing the allegation that it was on the 3d of May, 1841.
    The court, after argument, overruled the demurrer to the replication, and gave judgment final against Bowie and Andrews for seventy-one dollars sixty cents; and Grover making default, judgment final by default was entered against him for the like sum; from which judgment this writ of error is prosecuted by the defendants, who assign the following errors, viz.:
    
      1. In overruling the demurrer to the replication.
    2. In rendering judgment final, on overruling the demurrer to the replication.
    3. In rendering a separate judgment against Grover.
    
      Sanders and Price, for plaintiffs in error.
    The plea sets forth the facts of failure of consideration. The replication is not an answer to the matter of the plea, as shown in the abstract. See 1 Chitty’s PI. 648, 649.
    The judgment by default against Grover is erroneous in this, that it does not follow the declaration or instrument sued upon. It is for a different sum'than that sued for. If the plaintiff had taken judgment for the whole amount, and afterwards entered a remittitur to conform with the finding of a jury, had there been one, it might have been tolerated. One reason for this objection is, that this judgment could not be plead in bar to any other suit upon the same instrument, as the judgment without the action or plea of the defendant, is for a different sum than the one set up in the instrument sued upon.
    But the whole judgment is erroneous, as it does not follow the note sued upon; this judgment does not come within the provisions of the ninth section of the act published in H. & H. 616. There should have been a writ of inquiry of damages, as provided for in the latter branch of the said ninth section.
    For which reason, we insist that the judgment of the circuit court be reversed, and remanded for new proceedings.
    
      William G. Thompson, for defendant in error.
    There is some informality, perhaps, in the replications of the plaintiff below, but it is insisted that they are substantially good, and are not demurrable for mere surplusage.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

This action was instituted on a writing obligatory. Two of the defendants pleaded specially, that the writing obligatory was given for the hire of a negro woman from the first of January, 1841, for one year, and that it was agreed and promised by the hirer, that she should not be taken out of Grover’s possession during the time for which she was hired. The plea avers that she was taken out of his possession by Gaskins, the payee of the writing obligatory, on the 3d of May, 1841. The plaintiff replied by a special traverse, that it was agreed between Gas-kins and Grover, at the time of hiring, that if Gaskins should want the negro before the expiration of the year, she was to be given up, and a deduction of twelve dollars per month made from the note, from the time she was so taken until the end of the year. The replication avers that she was in possession of Grover from the 26th of December, 1840, until the 3d day of June, 1841. To this replication the defendants demurred; the court overruled the demurrer, and gave judgment against all the defendants, (Grover having made default) not for the amount of the note, but for seventy-one dollars, being the amount left after deducting twelve dollars per month from the 3d of June to the 1st of January. This we think was error. In actions of debt for a sum certain, and in actions founded on any writing ascertaining the sum due, the clerk is authorized to make the calculation, in certain cases, and to issue execution accordingly. H. & H. Dig. 616. Although this was an action for a sum certain, yet the contract did not ascertain the sum due. That was ascertained only by the replication, which stated a modification of the original contract. For this error the judgment must be reversed; but the question on the defendants’ demurrer to the plaintiff’s replication, has also been discussed, and as the defendants may desire to obtain leave to take issue when the cause is remanded, we may intimate an opinion that the replication is good. It was framed according to a system of pleading which is now seldom resorted to, denominated a special traverse, being but a qualified or limited denial of the pleading on the other side. It confesses a contract, but denies that it is truly stated in all respects on the other side. Stephen on Pleading, 175. The first cause of demurrer is, that the replication confesses and avoids, and yet traverses the contract with an absque hoc. If this were true, it would be a defect, according to this mode of pleading; but the replication does not confess the contract as pleaded; it confesses a contract differing in a material part from that stated, in the plea. The second cause of demurrer is, that the replication is uncertain in not stating what note a deduction was to be made from. It must be understood to refer to the note mentioned in all the previous pleadings. The third cause of demurrer is, that the replication avers that the negro was taken away on the third of June, but does not traverse the alleged taking away on the third of May; The time at which the negro was taken away constitutes part of the special traverse, and is therefore sufficient.

The final judgment must be reversed, and the cause remanded, for a writ of inquiry.  