Murphy vs. Lawrence.

the deficiency is not good in arrest of the judgment, but will be cured by a verdict;" and when taken by demurrer, is therefore amendable. If the title or cause of action set forth be defective, then the defect will arrest the judgment, and it is not cured by a verdict. 1 Chitty Plead. 319, on margin; 1 East, 209, 210; 2 Saund. 352, note 3; 2 Burrow, 900; Doug. 687, note g. and h.; 1 Saund. 228 b.; 16 Pick. 128; 6 Ibid. 409; 5 Mass. 306; 7 Mass. 169; 10 Mass. 316.

Does not this declaration show a contract, an undertaking by defendant to do a thing, to wit, distil the plaintiff's peaches? and if the condition is not precedent, but a proviso working only a defeasance, as I believe it is, then is there not a cause of action exhibited, albeit imperfectly? Is there not something upon which to amend? It is not too late, in the order of this opinion, to say here, that in almost all the cases where conditions have been brought into discussion before the courts, and determined to be conditions precedent, they have been conditions to be performed by the plaintiff, and not as here, a status, or condition of the defendant, which shall excuse him. After verdict, the law-the courts would be constrained to infer that the jury had no evidence before them to show that the defendant was entitled to be excused on account of the proviso, and that they did have before them proof sufficient to justify a finding for the plaintiff. The verdict finds that there was a breach of the contract legally proven. The defendant further, could be at no loss as to the character of the plaintiff's demand or charge; he is thoroughly put upon his guard. Nor can it be doubted, that the judgment in this case would be a bar to another action brought against him for the same cause. More then for the sake of giving full effect to the spirit of our statute, than because we believe that at common law the declaration was bad, we affirm the judgment of the Court below, in sustaining the demurrer. A fortiori, we sustain the decision authorizing the plaintiff to amend.

As to the second exception, we find that the breach was [2.] assigned in the following words: "and your petitioner avers and expressly states to the Court, that the said Murphy did not comply with his contract with your petitioner, but wholly refused and neglected to comply in any part or portion of his said contract, without any fault of your petitioner; and by means of the breach and nonfeasance of his contract with your petitioner, the peaches in said orchard were a total loss to your petitioner." This breach is not sufficiently certain or special. The character of the breach

Smith, adınr. vs. Burn and McLendon.

must depend upon the character of the contract broken. It may, however, be assigned in the words of the contract, either negatively or affirmatively; or in words that are co-extensive with the import and effect of it. 1 Chitty t. p. 241; 2 Saund. 181, b. c.; 13 East. 63; 6 Cranch 127.

When breaches lie more in the defendant's than in the plaintiff's knowledge, less particularity is required. 8 T.R. 463; 8 East. 80.

A general statement that the defendant has not performed his agreement or promise is bad on demurrer, though aided by verdict. 1 Chitty Plead. t. p. 243; 5 East. 270; 5 B. & C. 284; 1 Salk. 240; 1 Saund. Plead. and Evid. 135. And this is the assignment made in this case. Chitty says, "the sufficiency of the breach will in general be aided by the verdict, by the common law intendment that it is not to be presumed that either the Judge would direct the jury to give, or that the jury would have given the verdict without sufficient proof of the breach of the contract.” 1 Chitty Plead. t. p. 245.

Our opinion is that the exception was well taken, but that the writ was in this particular also amendable. The judgment of the Court below is affirmed.

No. 37.-OTIS SMITH, administrator, &c. of Wilie Warmack, deceased, plaintiff in error vs. THOMAS C. BURN, plaintiff in exeution, and FREEMAN MCLENDON, defendants in error.

From Troup Superior Court.

Motion to dismiss the case upon the following grounds, that isFirst. There was no notice filed in the clerk's office of the Court

below, of the signing of the bill of exceptions.

Second. The testimony had on the trial below, was not embodied in the bill of exceptions.

Third. The bill of exceptions was not signed within four days after the adjournment of the Court below by the presiding Judge.

DOUGHERTY, for plaintiff.

BULL, for defendant.

Smith, admr. vs. Burn and McLendon.

By the Court-LUMPKIN, J. delivering the opinion.

The motion must be sustained upon all of the grounds embraced in it, any one of which would be fatal to the writ.

The fourth section of the Act creating this Court, 1 Kelly's R. VI, requires, "that when any bill of exceptions shall have been signed and certified by the Judge of the Superior Court, that notice thereof shall be given to the adverse party, or his counsel, within ten days after the same shall have been done, and shall be filed in the clerk's office immediately thereafter.

By the same section of the same organic law, Ibid, it is provided, "that any cause of a civil nature, either on the law or equity side of the Superior Court, may be carried up to the Supreme Court on a bill of exceptions, specifying the error or errors complained of in any decision or judgment, to be drawn up by the party complaining thereof, his counsel, solicitor, or attorney, within four days after the trial of the cause, and submitted to the Judge, to be by him certified and signed.

By the 4th Rule of this Court, Ib. x1, it is declared that " a brief of the oral, and a copy of the written evidence adduced in the Court below, shall be embodied in the bill of exceptions, and shall constitute a part of the same."

In this case no notice has been given of the signing of the bill of exceptions. It is apparent, from the record, that the bill of exceptions was presented to the presiding Judge, and signed and certified by him, on the fifth day after the trial of the cause. And no portion of the testimony of Jesse McLendon is incorporated in the bill of exceptions, notwithstanding the record shows that he was examined as a witness by the defendant in error in the Court below; and that one of the errors complained of on the trial at the Circuit, was the reception of said testimony.

The writ must be dismissed.

CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT OF THE STATE OF GEORGIA,

AT CASSVILLE,

MARCH TERM, 1847.

No. 38. DANIEL NEISLER, WESLEY H. STANSELL and SIMPSON REID, plaintiffs in error vs. LORENZO D. SMITH, defendant in error.

[1] In this State a verdict for the defendant in an equity cause, on the first trial thereof, does not operate as a dissolution of the injunction granted therein, as a matter of course, where an appeal is entered from such verdict in accordance with the provisions of the Act of 1843.

This was a bill in equity for discovery, relief and injunction to stay waste. In Union Superior Court. Tried before Judge WRIGHT. September Term, 1846.

Upon this trial, which was the first had in the case, the jury rendered a general finding against the defendant, from which the plaintiffs in error, who were complainants in the bill, entered an appeal in terms of the statute in such cases.

The counsel for the defendant moved the Court below to dissolve the injunction, on the ground that the finding of the jury was in his favour; to which the counsel for the complainants objected, because the verdict of the jury had just been entered on the minutes of the court, and they had not had time to enter an appeal, that the clerk had not had time to make out the bill of costs for that purpose, and that they intended appealing immediately.

The Court below allowed the motion, and passed an order dissolving the injunction on the ground alone, that the injunction was gone as a matter of course, upon the finding of a verdict in favour of the defendant, notwithstanding the right of the parties to appeal.