
    Bryant v. J. & T. Simpson, Surviving Partners.
    3. A declaration founded on an instrument for the payment of n sum rev-taint‘*t«ict*ther v, ith co^ts of suit and interest,” tbe amount of which is not specified in the i «‘rument. nor averred in the declaration, will au* thorize* a e *o~e y » f th ; -um ee*tain and i :te»e«t Ihereon,
    
      % Although pleas are on file, judgment of nil (licit may he rendered, and such judgment authorize* the presumption that the defendant was pro* scut by him«e!f or counsel, anti did not attempt to sustain lii« pleas 3. In an action of covenant, npl-aof payment, or of covenant*» performed, does not admit the deed, but the plaintiff must prove his cause oí action,, jw if no plea, or negative plea*» only were filed*
    This was an action of covenant, commenced in the Circuit Court of Lauderdale county, by Ihe defendants in error, as surviving partners of Alexander McFaddin, against the plaintiff in error, founded on an instrument, of whi.'h the following is a copy: “On or before the fir.-t day of January, 1S25, I promise to pay John Simpson & Co. the amount of a note of hand under seal, given by me to Geoi'ge F. Huber, for seventy four dollars, fifty six cents, together with costs of suit and intertst from the date thereof. In testimony whereof, witness my hand and seal, this 26th day of July, 1824. to be paid in specie. Sam. Bryant, (seal.)” The declaration contained one count only, which merely set forth said instrument and a breach thereof in general terms, as the cause of action, without any special averments as to the costs of the suit alluded to, the amount of interest &e. &c. The defendant below filed two jileas, payment, and covenant performed. Judgment of nil dicif, without noticing the pleas, was rendered by tbe Court below, and a writ of executed, by which $97 16 damages were assessed to the plaintiffs below, besides their costs.
    William B. MartiN, for plaintiff In error.
    Although a demurrer, not noticed as being disposed of, is considered ag wajve(j 0,. withdrawn, or determined against the unsuccessful party, on the trial of the issues, if there are any of fact afterwards tried, yet it is no where determined, that such a presumption operates as to issues in fact; but on the contrary chereof, it is the duty of the Court to have a jury sworn to try the cause as presented by the record made up, unless there be a withdrawal of the plea, replication, or that which forms an issue on his part. Otherwise, the case would not be disposed of, nor need a bill of exceptions be taken for that failure of the count, because the record shews the facts. It cannot be said, that a defendant says nothing, when he has said of record, that he has performed his covenant, and has paid the money claimed in the breach of covenant.
    It is further contended, that the declaration, setting forth the covenant, not only does not allege a consideration, which it may be contended is'not necessary in a deed, but fey the shewing in the declaration, a nudum pactum, or voluntary bond, is fully admitted. Nor is there any allegation in the declaration, setting out the manner, grounds, or items of damage to which defendants in error were entitled. And why not now apply the rule of law to this case, that the proof cannot he broader than the allegations; be it on a trial of issues, or.on assessment of damages. If what is already said be correct in principle, then the declaration is substantially faulty, and may be defeated on error, as well as it could have been by general demurrer. To be more specific as to the faults in the declaration, it should be recollected that the note referred to as being payable by defendants and plaintiff to George F. Huber, is a part of the covenant sued on in this case; because it is referred to, it should have been stated and identified as to its dale, time of payment, in what Court it was sued on, and at any rate, why costs bad accumulated; and likewise, why and wherefore it was, that it became the duty of the plaintiff in error to pay it, more than it was the duty of defendants in error to pay their part5 or all of it. It seems too that there should have been an allegation in the declaration, shewing that defendants in error had paid it off for plaintiff in error, and therein sustained damage, so as to give them a claim thereto. Nor would that have been tending the eovenantsued on; but only giving it that tímate explanation which the law allows, and which its reference to the note made payable to Huber, required to be explained, so as to shew a ground of action. Sometimes it is sufficient to set forth the contract in the words used; that must always be done, or the legal effect stated; but it often occurs, that the language used, would not shew a ground of action, but for explanations and inuendoes, which it is contended, is the case here, and that it is not matter of proof, unless alleged more specifically, and that the judgment should be reversed back to the writ, to let the plaintiff in error have an opportunity to shew what he has paid, or that he has performed his covenant; and to require the defendants in error to make all the affirmative allegations, such as what thej' have paid for us, and why it is, that they have sustained damage: and not require the plaintiff in error to prove negatively, that the defendants have sustained no damage.
    Hopkins, for the defendants in error.
   B37 JUDGE TAYLOR.

Several matters are assigned as error in this cause, some of which relate to the declaration, and others to the proceedings in the Court below. It is insisted, that the declaration does not shew a cause of action with sufficient certainty. The declaration is founded on a sealed instrument, of which it gives the following description: ‘‘Said defendant, on the 25th day of Juty, ¡824, at, to wit: in the county aforesaid, made his certain writing, obligatory of that date, sealed with his seal, and to the Court now here shewn, whereby he promised and bound himself, and covenanted to and with said John Simpson and company, to pay them, on or before the first day of January, 1825, the amount of a note of hand under seal, given by him, said defendant, to George F. Huber, for seventy four dollars, fifty six cents, together with costs of suit, and interest from the date of the note given to said Huber.” The declaration then proceeds to set out the breach, in terms as broad as the description. I suppose the assignment of error is made under the idea that the declaration should have contained an averment of the suit which is referred to in the instrument, on which this action is founded; the amount of the costs incurred in that suit, and of interest which was due on the note given .to It is certainly true, that no recovery could have beon had in this case, of the amount of those costs and interest, without such averment: but the declaration is sufficient to authorize a recovery of seventy four dollars, fifty six cents, and the interest which had accrued thereon, from j|ie c]ate 0f £]ie instrument sued on in this ease, to the time of the judgment. It is not necessary to cite authorities to sustain this doctrine.

It is also objected to the proceedings below, that the Court erred in empanneliing a jury to inquire the damages, when there were two pleas filed, on w hich issues were joined; and permitting plaintiffs below to take judgment bv mV (licit, although those pleas were not withdrawn. It appears from the record, that the pleas of payment, and of covenants performed, were pleaded by the defendant, and that issues were joined thereon by the plaintiffs. The next entry is as follows: ‘-came the parties by at torne}’, and the defendant saying nothing, judgment is entered by nil decit; and thereupon came a jury of good and lawful men, to inquire of damages,” &c. who were sworn to assess the damages. It sufficiently appears from this entry, that both the parties were present by counsel, when these proceedings took place, and that the defendant did not attempt to sustain his pleas. Were it necessary, we might be authorized to infer, that the defendant’s eounsei acknowledged his inability to sustain his pleas by proof, and thus virtually withdrew them; but this is not a necessary implication in support of the judgment. Suppose the case had been put to the jury on the issues, what proof would it have been incumbent upon the plaintiffs to have produced? Strictly, according to common law practice, no proof would have been necessary. Both the pleas admitted the instrument as set out in the declaration, and this admission would have been sufficient to have entitled the plaintiffs to a verdict. But according to the rule which has been adopted In our Courts, it would have devolved upon them to have produced the instrument on which they had declared, to the jury; this it was equally important for them to introduce, under the same rule, on the inquiry of damages. The defendant therefore has sustained no possible injury, and it would indeed be sacrificing justice, to satisfy the demands of form, we^e the judgments, for this reason, to be reversed. The judgment of the circuit is affirmed by a majority.

By JUDGE COLLIER.

In Thomas v. Browns, this Court reversed the ju:lg uent of the Circuit Court, because there was a plea in the record undisposed of, though the entry of the judgment recited, that .lite parties came by their attorneys, and that the defendant said nothing in bar of the plaintiff’s action. The case before us, bears as s'ri-Icing an analogy to that case, as it is possible for one case to bear to an it her, and the decision now made, is wholly jrreconcileable with that adjudication, and mu.d be considered as overruling it. I need not attempt to sustain the case of Thomas v. Brown, either by argument or authority. It is enough that it has been made the law of this Court, to induce a conformity of opinion by me. If it be a decision founded in error, it is better to permit com~ manís error facera k°gun, than to unsettle the law, by disregarding it. Í believe with Mr.Jenkins, that‘-variety of judgments and novelty of opinions, are the two great plagues of a commonwealth.” Th i decisions of a tribunal of the last resort, should possess permanence and stability of character. They should noL be disregirded by the Coutt that pronounced them, though they may not correctly ascertain the law, unless a greater inconvenience would result from an adherence 1o them. Next to cor-secti ess of decision, nothing is so well calculated to give character to the bench, as a regard for precedent and harmony in its judgn cuts. Hence I am of opinion, that the judgment should be reversed and the cause remanded, and with me Judges White and Peiiri" concur.

Judge Saffold, not sitting.

Judgment affirmed. 
      
       1 Stewart’s R. 412.
     