4 Ark. 526 | Ark. | 1842
By the Court,
It is clear, that the first count is defective, because it does not aver demand and notice, which are necessary to fix the assignor’s liability, unless he shows a sufficient legal excuse to supersede the necessity of this averment. This is not done. The judgment overruling the demurrer to this count is, therefore, wrong.
The issue of non-assumpsit was not disposed of, and in this there is also error. If there is a question of law presented, or an issue of fact, in both cases it is the duty of the court fo have these points disposed of. If it is purely a question of law, it should be decided by the court: if of fact, by a jury, if required. The court ought not to proceed with the case, until all the issues raised upon the record are determined.
Judgmeni reversed.
