Dowdel v. Aston

3 Blackf. 406, 1834 Ind. LEXIS 38

Opinion

Blackford, J.

This was an action by Aston and Coffin. against Dowdel and ¡Nugent. The plaintiffs, instead of filing a declaration, merely filed á note under seal for the payment of a certain sum of money as the cause of action. Upon the calling of the cause, the defendants moved the Court to dismis* it for the want of a declaration. The Court overruled the motion, and gave judgment for the plaintiffs below.

C. P. Hester, for the plaintiffs. A. S. White, for the defendants.

The only question in this cause is, whether it is necessary, under the statute of 1833, to file a declaration in an action on a writing under seal for the payment of money? It appears to us, that the statute must be confined in its operation to promissory notes; that is, notes not under seal. The statute, in the commencement, speaks of bills or notes; but in a subsequent clause, the meaning is restrained by the reference to promissory notes alone. The remedy is a new one, unknown to the common law, and the statute cannot claim a liberal construction, Bac. Abr. tit. Statute. The judgment must be reversed.

Per Curiam.

The judgment is reversed with costs. Cause remanded, with leave to file a declaration, &c,