Wightman v. Hastings
Massachusetts Supreme Judicial Court
This was an action of the case upon a promissory note. ' The plaintiff alleged his damage at 200 dollars. At the court below, the defendant pleaded non assumpsit, to which the plaintiff demurred, reserving liberty to waive his demurrer, and join the issue tendered upon the appeal. The defendant joined in demurrer, agreeing to the reservation. Upon the appeal, the plaintiff withdrew his demurrer, and joined the issue tendered below.
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This was an action of the case upon a promissory note. ' The plaintiff alleged his damage at 200 dollars. At the court below, the defendant pleaded non assumpsit, to which the plaintiff demurred, reserving liberty to waive his demurrer, and join the issue tendered upon the appeal. The defendant joined in demurrer, agreeing to the reservation. Upon the appeal, the plaintiff withdrew his demurrer, and joined the issue tendered below. Upon trial of this issue before Parker, J., at the last November term, the jury re turned a verdict for the plaintiff, and assessed his damages at 23 dollars 25…
1Opinion of the Court
Per Curiam,
(absente Parsons, C. J.) The words of the statute are too clear to leave a doubt. It is absurd to say that the parties may by their agreement evade a positive and very wholesome pro vision of a statute. The case is clearly within the provision, and to decide otherwise would be to make law, not to explain and administer it. The plaintiff is entitled to his costs before the appeal and the defendant is entitled to his costs since the appeal.
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