Pierce v. Lacy & Sheppard

23 Miss. 193 | Miss. | 1851

Mr. Chief Justice Smith

delivered the opinion of the court.

Under the law of this state the writ constitutes a part of the record. Officers of Court v. Fisk, 7 How. 403; Kibble & Morton v. Butler, 14 S. & M. 207. Hence the defendant, in the court below, was not bound to crave oyer of the writ as a preliminary step to the presentation of a plea in abatement.

The writ in this case was sued out in the name of Samuel Lacy and Joseph G. Sheppard, partners in trade under the firm and name of Samuel Lacy and Joseph G. Sheppard. It is manifest that there was a material variance between the writ and declaration, for which the party here might have demurred or pleaded in abatement. He chose to take the latter course, and the plea should have been adjudged good.

The instrument sued on in this case was a written promise to pay money, signed by the party charged, opposite to whose name in the proper place for a seal there was a scrawl, within which was written the word “seal.” According to the decisions in the cases of Whittington v. Clark, 8 S. & M. 480, and McRaven v. McGuire, 9 Ib. 34, the contract sued on was a sealed instrument, technically known as a bill single.

The action was misconceived. It should have been debt and not assumpsit. This, however, would have been no ground for ruling out the sealed instrument, when offered as evidence, if it bad been properly described in the declaration.' It was described as a promissory note simply, and not as a bill single or sealed instrument. It should therefore have been rejected.

Let the judgment be reversed, and the cause remanded with leave to amend.