Kingkendall v. Perry

25 Miss. 228

• Court: Mississippi Supreme Court
• Decided: October 15, 1852
• Status: Published

Opinion

Mr. Justice Yerger

delivered the opinion of the court:

This was an action of debt upon a bond. The defendants' craved oyer, and demurred because of a variance between the bond described in the declaration and that set out on oyer. The variance is said to consist in this, to wit: The plaintiff sues as administrator de bonis non, Ace., of Simon Perry, deceased, and avers that the defendants executed their bond “ payable to him as administrator as aforesaid, by name of P. W. Perry or.order;” whereas the bond read on oyer is payable “to P. W. Perry, administrator of Simon Perry, deceased, or order.”

As the declaration does not pretend to set out the bond “ in hcec verba,” but only according to its tenor and effect, it might be questioned whether, even by the strict technical rules of common law pleading, the demurrer could be sustained. But when it is recollected, that this suit was instituted since the act of March 9th, 1850, went into effect, and in accordance with its provisions, we cannot sustain the demurrer unless we disregard the plain requisitions of the 7th, 11th, and 15th sections of that statute.

The judgment of the court below must be affirmed.