Adams v. M'Millan

8 Port. 445 | Ala. | 1839

COLLIER, C. J.

— -The declaration, "after setting out the promissory note, its delivery, &c. proceeds thus: “ and said defendants then and there, in consideration of the premises, promised to pay the money specified in said note, to said plaintiff, according to the tenor and effect thereof, yet said defendants have not paid,” &c.

It is objected, that this statement of a promise is not sustained by the inference usually thus expressed : “ by means whereof, &c. the said defendants then and there became liable to pay to the said plaintiff, the said note specified, according to the tenor and effect of said note.’* This allegation is inserted in most forms of declarations, where the action is against the parties primarily liable, as the maker of a note or acceptor of a bill; and though it may have been considered a formal allegation, the omission of which would be bad on special demurrer, it is clear, that it is not a mátter of sui.stance, to be reached by a general demurrer, or on error.

.The promissory note is in itself a legal liability, arid needs not a distinct substantive allegation to entitle a plaintiff to recover, apart from a description of the nóte, and an allegation of non-payment, &c. in the declaration —(Bayl. on Bills, 112, 362, note 1; Starkie vs. Cheeseman, Carth. 510, S. C.; Salk, 128; Anon. Hardre's Rep. 486; Bacon’s Ab. tit. assumpsit, F.; 1 Taunt. R. 217; act of 1812, Aik. Dig. 328; act of 1811, Aik. Dig. 283.)

There is no error in the record, and the judgment is affirmed.