Snowden v. McDaniel, 7 Mo. 313

Snowden v. McDaniel

7 Mo. 313 | Mo. | 1842

Opinion of the Court, delivered by.

Scott, Judge..

McDaniel sued Snowden by petition in debt on- a bond; judgment was rendered against Snowrden,andhe has brought the cause here by appeal. One of the errors assigned, is, that the court overruled the plea of non est factum, filed by Snowden. It has been repeatedly held, that the plea of non est factum, although not verified by affidavit, is a good plea to an action on a sealed instrument;, the omission of tihe affidavit, merely relieves the plaintiff from, the necessity of ... . ... , , proving the execution ot the instrument; all other advan-a party can avail himself under that plea, The practice o-f the circuit court, in permitting motions to strike out pleas, to be substituted for demurrers, ought not to be tolerated. It is not conceived , ... on what principle such a practice is founded. In this case, the plea of non est factum, was disposed of by motion, an(l no bill of exceptions having been taken to the action of the court below, according to the practice of this court, the error cannot be examined. tages, of which are still open to- him.

It is, also, assigned for error, that the court below refused to dismiss the suit, because the plaintiff was a non-resident, *314an<^ ^ n0Í ^ven security J°r costs ^e^ore commencing his The court permitted a bond for costs, to be filed after the motion to dismiss was made, and then overruled the tno-^011, ^ ^as ^een determined by this court, that when a non-resident commences a suit without giving security for costs, he may be permitted to file a bond for costs after a mo-^011 made. Posey v. Buckner, 3d. vol. Mo. R. 604.

When a nonresident commences a suit without giving security for costs, he may be permitted to file a bond for costs, after a motion is made to dismiss for want of such security. (See .Gov-of Mo. v. Kector, 1, Mo R. p. 638.) Posey v. Buckner,- 3, Mo. E. 604.)

Judgment affirmed.