Metzger v. Canadian & European Credit System Co.

36 A. 661, 59 N.J.L. 340, 30 Vroom 340, 1896 N.J. Sup. Ct. LEXIS 21

• Court: Supreme Court of New Jersey
• Decided: November 15, 1896
• Status: Published

Opinion

The opinion of the court was delivered by

Van Syckel, J.

The declaration is in due form for-covenant, and the instrument sued on is not expressly made a part of the declaration.

A copy is attached to the declaration which appears to be not under seal.

Defendant demurred to the first count and assigned as cause for demurrer that the declaration is in covenant on an instrument not under seal.

It does not appear that the instrument declared on is not •under seal. Resort cannot be had to the copy of the paper annexed to the declaration to show that fact; it is technically no part of the declaration. To enable the defendant to take •advantage of the alleged defect, the body of the declaration .must refer to the instrument sued on as so annexed; it thereby becomes part of the pleading. Otherwise the court cannot, -on demurrer, take notice of it. Gen. Stat., p. 2554, pl. 123; Harrison v. Vreeland, 9 Vroom 366.

There is no fault, so far as appears, in the declaration, and ¡the demurrer must'be overruled, with costs.