Phillips vs. Dodge. Prince, 505. As to the form of the oath administered to Special Jurors, see Prince, 437. The Jury found the property subject to the execution, and ten per cent. damages. The plaintiff in execution remitted the damages, and the Court below dismissed the certiorari, and we affirm the judgment of the Court below. No. &-ANTHONY PHILLIPS, plaintiff in error, vs. DANIEL R. DODGE, defendant in error. [1.] The cause of action in this case is not within the Act of 1847, entitled "An Act to simplify and curtail pleadings at Law." [2] A declaration upon notes for the payment of specific articles of property: Held to be bad, without an averment of the value of those articles, at the maturity of the notes, and that the notes, being offered in evidence; were properly rejected, because of a variance between the allegations and proof. [3.] Held, farther, that at Common Law, after the cause has gone to the Jury, such a declaration is not amendable so as to admit the notes in evidence. Action on notes, in Camden Superior Court. Tried before Judge H. R. JACKSON, November Term, 1849. Phillips brought an action against Dodge, under the Act of 1847, alleging that he was indebted to plaintiff the sum of $100, besides interest on two promissory notes, dated 16th September, 1845, and due 1st September, 1846. There was annexed a copy of the notes, which were as follows: "On the first day of September next, I promise to pay A. Phillips, or bearer, fifteen head of gentle, two year old, spayed sows and barrows, it being for value received of him, this 16th September, 1845. [Signed,] The other note was an exact copy. DANIEL R. DODGE." Phillips vs. Dodge. No-defence was entered, and judgment, by default, was taken at the first term. On the trial, the presiding Judge ruled out the notes, on the ground that they were not described in the petition, and no allegation was made of the value of the specific articles in which the notes were payable. Counsel for plaintiff then moved to amend, by adding the necessary description and allegation, which motion was refused. These decisions are alleged to be erroneous. W. B. GAULDEN, for plaintiff in error. W. B. FLEMING, for defendant. By the Court.-NISBET, J. delivering the opinion. [1] As the declaration in this case is very brief, I submit a copy. It is in the following words: GEORGIA, CAMDEN COUNTY. To the Superior Court of said County: } The petition of Anthony Phillips showeth, that Daniel R. Dodge, of said County, is indebted to him in the sum of one hundred dollars, besides interest, on two written promises, dated the sixteenth day of September, eighteen hundred and forty-five, and due the first day of September, 1846, which said two written promises the said Daniel R. Dodge refuses to pay; wherefore, your petitioner prays process may issue, requiring the said Dan-iel R. Dodge to be and appear at the next Superior Court of said County, to answer your petitioner's complaint. WM. B. GAULDEN, Attorney for Petitioner. To this declaration, copies of the two written promises, as they are called, were appended. Being exactly alike, I add a copy of one of them only, "On the first day of September next, I promise to pay Anthony Phillips, or bearer, fifteen head of gentle, two year old, spayed sows and barrows, it being for value received of him, this 16th September, 1845. DANIEL R. DODGE." Upon the trial of this cause, at Common Law, the plaintiff tendered in evidence the originals of the copy notes appended to Phillips vs. Dodge. his declaration, which were repelled by the presiding Judge, upon two grounds 1. Because they were hot described in the declaration. 2. Because there was in the declaration no allegation of the value of the specific articles in which the notes were payable. The ruling of the Court, in repelling the notes, upon the grounds stated, is assigned for error. The notes sued on here, are not promissory notes, and are not negotiable under the Statute of Ann, because not payable in money. 2 Ld. Raymond, 1396. 8 Mod. 362. Stra. 629, 1271. 7 Johns. R. 461. 3 Kent, 74, '5. Story on P. Notes, 20. 7 Johns. R. 321. 1 N. & McC. 254. Pool vs. McCrary, 1 Kelly, 321, Broughton vs. Badgett, Ib. 77, '8. But notes payable in goods or stock, or indee l any thing, are made negotiable by our own Act of 1799. Prince, 426. Broughton vs. Badgett, 1 Kelly, 77, '8. Whether, at Common Law, a note or promise to pay in specific property, is any thing more than an agreement to deliver the property, and to be declared on as such, need not be mooted in this case, because the legal character of such a paper is fixed, in this State, by Statute. They are made- negotiable and of equal diguity with notes for the payment of money, by the Act of 1799; and by the Act of December, 1800, it is declared, that the price of the specific property, at the time the note falls due, having respect to the place where it is payable, with interest, shall be the criterion or rule of valuation. Prince, 813, By law, therefore, if such notes are not paid at maturity, the holder is entitled to recover, in money, the value of the property agreed to be paid at maturity, with interest. Such being the legal character of these papers, how ought they to be declared on? [2.] Our Statute of 1799, requires the plaintiff plainly, fully and distinctly, to set forth his cause of action. At Common Law, under the Act of 1799, and by our own practice, which has grown up under that Statute, it does not admit of a doubt, but that the plaintiff would be required to aver the value of the property at the time when the notes fell due. So far as I know, that fundamental rule of pleading, that a party must, by clear and distinct allegations, bring himself within the law which regulates his right to recover, has, by no Judge and no Court, prior to the Act of 1847, been dispensed with in Georgia. Proof of the value of the property promised to be paid, is a legal condition Phillips vs. Dodge. precedent to the plaintiff's right of recovery. According to all rule, he could not prove that without averring it. For the want of that averment, this declaration is radically, fatally defective. Failing to aver that, he has set forth, as springing out of these notes, just no cause of action whatever; and the notes were, for this reason, properly repelled. They were wholly irrelevant. It is not questionable-never has been questioned-but that in all material points, the allegations and the proof must correspond. This declaration avers a promise, in writing, to pay one hundred dollars, besides interest, on two written promises, bearing date at such a time, and due at such a time, and that the defendant refuses to pay; and this is all that it does allege. The notes offered in evidence are promises to pay, each, fifteen head of gentle, two year old, spayed sows and barrows. The disagreement between the allegata and proof is essential and palpable, and for this reason the Court was right in rejecting them. But in answer to all these things, it is said, that by the Act of 1847, entitled an Act "to simplify and curtail pleadings at Law," the Legislature has, in totidem verbis, ordained the declaration in this case, as the form of pleading to be used in suing on just such notes as these. If this be true, the objections to the declaration before stated, we concede, pass for nothing. The right of the Legislature to declare what shall be the form of pleading, in any and every case, we do not question; and when the will of the Legislature is known, through the solemn forms of law, it is the duty of this Court to give effect to it, wholly irrespective of our opinions as to the wisdom and utility of the law. It is our unswerving purpose to discharge that duty, and in all cases to enforce the laws of the State, unless they are unconstitutional. If, in legislation, the General Assembly transcends its constitutional powers, it is our duty-a duty of paramount obligation—to give effect to the fundamental law, and to declare such legislation void. That, also, is a duty, from the discharge of which, it is our solemn purpose not to shrink. By the 3d section of the Act of 1847, it is declared, "That the form of an action, to recover money on a note, bill, bond, receipt or written promise of any description, by adding a copy of which, with the indorsers' names, (if any,) and credits, shall be appended; and when the suit is on a bond, the breach from which arises the right of action shall be set out plainly, may be as follows, to wit:" and then follows the Phillips vs. Dodge. form of action adopted by the pleader in this instance. This law does not declare that the form prescribed shall be adopted—its language is permissive. Parties are left to adopt it or not, as, they may think proper, They may adhere to the established rules of pleading. This is made conclusive by the 7th section of the Act, which provides, "That no departure from the before prescribed forms, shall work a non-suit, provided the plaintiff shall plainly and distinctly set forth his cause of action." By all of which, I understand that the plaintiff may adopt the prescrib ed form, and if he does, it shall be sufficient-or he may disregard that form, and, in that event, he shall not be non-suited, if The plainly and distinctly sets forth his cause of action. The Act of 1847 then, repeals no law of pleading in force prior to that time. It gives to parties simply a license to use the prescribed form, and if he elects to use it, he shall be protected in its use, and if he does not, he is subject to the Act of 1799, which requires the plaintiff plainly, fully, and distinctly, to set forth bis cause of action. The proviso to the 7th section is simply in affirmance of the Act of 1799. Now, it is claimed, that in this case, the plaintiff has elected to sue according to the form prescribed, and following, literally, that form, he is not bound by any law, usage or practice previous to 1847. The election, as a mere fact, is true; and that he has followed the form, with commendable exactitude, is true. But is it a case. of election? Is any form of action prescribed by the Act of 1847, upon notes for specifics? We think not; and if we are right, the plaintiff can take nothing under the Act of 1847, and his pleadings are to stand or fall by the law of pleadings of force anterior to that Act. By that law, we have already passed upon them sentence of condemnation. Indeed, the learned counsel for the plaintiff does not defend them under that law. If these notes are embraced in the Act of 1847 at all, they fall under the 3d section, before referred to. The first relates to the recovery of real estate; the second, of personal property; the fourth, to actions on account; the fifth, to actions on judgments, and the sixth, to actions for breach of warranty in deeds, and these, and those embraced in the third section, are all the causes of action for which forms are provided, Inasmuch as the Act of 1847 revolutionizes the entire system of pleadings, which, in the lapse of many years, had grown, up |