Douglass ex rel. Long v. Hendricks

1 Miss. 230

• Court: Mississippi Supreme Court
• Decided: June 15, 1826
• Status: Published

Opinion

OPINION OF THE COURT — by the

Hon. J. Child.

The judgment of the circuit court of Claiborne in this case, shews na. certain sum or amount for which it was entered up; nor does any certain sum appear in any part of the record, by which that uncertainty can be rendered certain.

It also appears on the face of the proceedings, that judgment peremptory was given by the court below, on sustaining the demurrer to the second plea, when by express provision of the statute, the judgment in su'ch cases, should be to plead over or amend. The plea of a discharge under the insolvent debtor’s act, is a good defence to the action, in case it be well pleaded. For these reasons, I am of opinion that the judgment below is erroneous, and ought tobe reversed.

The alleged alteration in the bond, is not in a material part; and therefore does not affect the validity of the instrument, which would have been good with or without filling the blank.

Judgment reversed and cause remanded,' with leave to plead over or amend, and venire facias de novo awarded.