Hughes v. . Wheeler

65 N.C. 418

• Court: Supreme Court of North Carolina
• Decided: June 5, 1871
• Status: Published

Opinion

Rbade, J.

The declaration is in case, the action having been commenced under the -old system, but it does not appear whether in tort or contract. This is what is called “ ambiguous or doubtful pleading,” and therefore bad, 1 Chitty Pl, 271.

The defendant took the objection that the action would not lie. From this it would seem that he understood the declaration to be in tort, and the plaintiff did not disclaim it. In ^answer to the objection his Honor held that the “ action would lie.”

But still it does not appear, except by inference, and from that obscurely, whether the action is founded in tort or contract.

If in tort it is misconceived. Case, nothing more appearing, •is generally understood to be in tort. 1 Chitty Pl. 151.

•For the error in this particular there must be a venire de ■novo, which is to be regretted, as the merits seem to be with ¡the plaintiff.

The bad pleading however is his own fault.

Fee Curiam. Venire de novo.