8 Fla. 356 | Fla. | 1859
delivered the opinion of the Coart.
This was an action of assumpsit brought by the appellee against the appellants upon a written agreement, which contained a promise to pay a certain sum of money in lumber, to be delivered at a certain place and to be valued by certain persons therein named, according to a bill to be furnished by the payee. The declaration contained a special count on the agreement, and very improperly designated it a “ promissory note.” The usual money counts were also embraced in the declaration. Seven pleas were interposed by the defendants below, all of which were replied to except the last, to which there was a demurrer. The demurrer to this plea was sustained, and thereupon the defendants voluntarily withdrew a 11 of the other pleas and suffered a judgment to be taken by nil dieit. To reverse this judgment the cause is brought to this Court.
The only exception contained in the general assignment of errors that we deem necessary to be considered is in the following words: “ That the declaration being defective as well as the plea, the Court should have given judgment for the defendants.” It is a well settled rule of practice, both in the English and American Courts, that, on demurrer, the
The same doctrine has been repeatedly enunciated by this Court and is strictly applicable to the case now undei consideration. — Dorman vs. executors of Richard, 1 Flo. Reps., 281.
Our statute would also seem to support this view of the law. It says, that “no judgment after verdict of a jury or an award of arbitrators shall be stayed or reversed for any defect or fault in the original writ, or for a variance between the writ and declaration, or for any mispleading, insufficient pleading or misjoining of the issue, or for any faulty count in a declaration where the same declaration contains one count or more.which is or are good, or for any informality in entering up the judgment by the Clerk, &e., &c. — Thomp. Dig., 351.
Notwithstanding the very great defects in the special count, we are nevertheless constrained, by the position which the case is made to assume before us, to sustain the judgment under the common counts.
The judgment will therefore be affirmed with costs.