JUDGES OF THE SUPREME COURT, DURING THE PERIOD OF THE DECISIONS CONTAINED IN THIS VOLUME. The Hon. ABNER S. LIPSCOMB, Chief Justice and Judge of the First Circuit. The Hon. HENRY W. COLLIER, Judge of the Third Circuit. CONSTANTINE PERKINS, Attorney General. REPORTS OF CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF ALABAMA. CASES DETERMINED AT THE TERM OF THE FIRST MON DAY IN JANUARY, 1829, AT TUSCALOOSA. PRESENT AT THIS TERM, THE HON. ABNER S. LIPSCOMB, CHIEF JUSTICE; AND THE HON. JOHN M. TAYLOR, SION L. PERRY AND HENRY W, COLLIER, JUDGES, BALDWIN V. BROGDEN. Where adefendant pleads as a set off, a note made by the plaintiff to another person, and transferred to him, the plaintiff will not be permitted to prove such set off void, as being given for a gambling consideration, without replying such defence specially. IN the Circuit Court of Pike county, I. M. Brogden brought an action of assumpsit against B. Baldwin, on a promissory note made by him, for $109 payable to one D. W. Edgerly or bearer, which by delivery had been transferred to Brogden. The defendant among other pleas pleaded as a set off, that he held a note for a larger sum made by the plaintiff to one Baker, or bearer, which had been duly transferred to him by delivery before the suit was brought, &c. No replication was filed to this plea, and in fact no issue was formally joined. At November term, 1827, a trial by jury was had. The defendant proved his possession of the note pleaded by him as a set off, and that it Baldwin V. JANUARY 1829. had been transferred to him before the suit was brought. The plaintiff offered evidence to prove that the note pleaded as a set off, was given for a gaming consideration contrary to the statute; to this evidence the defendant objected, but the Court overruled the objection and admitted the testimony, and the jury found for the plaintiff the amount of the note sued on and interest. Brogden. The admission of this testimony was the error assigned. GOLDTHWAITE, for the plaintiff in error. THORINGTON, for the defendant. By THE CHIEF JUSTICE. The plaintiff below should have replied to the plea of set off, that the note was given for a gambling consideration. This would have given sufficient notice to the defendant, and he could have been prepared to meet the objection, but it was surely improper to receive the testimony without such a replication Judgment reversed and cause remanded Judge CRENSHAW not sitting. PICKENS V. HAYDEN and MERIAM. In assumpsit, a judgment by default for costs only, and no damages, is er roneous. THIS was an action of assumpsit determined in Monroe Circuit Court. It was brought by the appellees against the appellant, on a note of hand. At October term, 1822, the following entry was made: "Judgment by default; whereupon it is considered by the Court that the plaintiff's do recover of the defendant the sum of $- - damages, and costs of suit, &c." It was among other things assigned for error, that no damages being recovered, the judgment for costs alone was erroneous. PARSONS and COOPER, for the plaintiff in error. ELLIS, for the defendants. |