Bowie's Administratrix v. Foster

1 Minor 264

Opinion

Judge Minor

delivered the opinion of the Court.

The first assignment is, that the declaration does not set forth any right of action in the plaintiff The evident conT struction of the contract as set out is, that Bowie undertook; .and promised to Foster, and for his benefit, to pay to Carson ¡the money he owed to Foster. The right of action seems tp be as clearly in him as it would have been on a note tp pay a debt due to him at a particular Bank or any other place. The 2d assignment is, that the declaration does not shew a sufficient consideration to support a promise. It has been heretofore decided by this Court, that a writing, such as is described in the declaration, is to be received as evidence of the debt or duty,(a) and that it is not necessary to aver the consideration. The 5th assignment is on the bill of Exceptions. Although the declaration does not, and the note in the bill of Exceptions does, sot out that the payment was to be made to Thomas Carson, Sheriff of Baldwin County, to satisfy an attachment, &c., I cannot see how setting forth this matter could have aided the party in his defence, or that the variance in the description of the instrument would present any difficulty to his barring a second recovery for the same cause of action. As to the 3d and 4th assignments—ihe title of the cause, as stated on the Record, shews that the judgment is against the plaintiff in Error in her representative character, and not against the intestate ; but the judgment being against her •de bonis pro-priis must for that cause be reversed, and judgment correctly rendered here.

Ruffin, for plaintiff

cited, I Ch. PL 8 Mass. 103.

Crawford and Hithcock, for defendant in Error. The Chief Justice having presided in the Court below, did not sit.

Footnotes

(a)

Allen vs. Dickson, ante, p. 119.