Prewitt v. Bennett

15 Miss. 101

• Court: Mississippi Supreme Court
• Decided: January 15, 1846
• Status: Published

Opinion

Mr. Justice Thachee

delivered the opinion of the court.

Writ of error to Choctaw county circuit court. The plaintiff in error filed a plea to the action, the object of which plea was to call in question the character in which the plaintiffs below instituted their suit, and to require proof of such character. This plea was not verified by oath or affirmation. At a stage of the trial below, the plaintiff in error moved the circuit court for judgment, because of the want of a replication to this plea ; but that court overruled the motion, and directed the plea to be stricken out as a nullity. This action of the court is claimed as error.

By our statutes, a plaintiff is not required to prove his description of character set forth in the declaration unless it be denied by plea, and its truth attested by oath or affirmation, except in cases where the face of the record itself evidences the truth of the fact set forth by the plea. The record of this case does not bring it within that exception. The plea, therefore, being in the nature of a plea in abatement, was of a kind .which, in the language of the statute, H. H. 589, § 2, “should not be admitted or received,” without an oath or affirmation of its truth. It was not merely informal, but was deficient in one of the substantial requisitions of the statute, and was consequently properly treated as a nullity. Templeton et al. v. Planters Bank, 5 H. 172; Vicksburg Waterworks & Banking Co. v. Washington et al. 1 S. & M. 539.

Judgment affirmed.