Reagan v. Maze

4 Blackf. 344, 1837 Ind. LEXIS 56

• Court: Indiana Supreme Court
• Decided: November 27, 1837
• Status: Published

Opinion

Blackford, J.

Maze brought an action of debt against Reagan and others on a promissory note. The declaration commences as follows:—State of Indiana, Fayette Circuit Court, March term, 1837, to wit: David Maze complains, &c. For that whereas heretofore, to wit, on the 9th of November, 1836, at Union county, to wit, at the county of Fayette aforesaid, the said Joseph Reagan, Absalom Sutton, and Meredith Helm, by the style, name, and. description of M. Helm, made their certain promissory note in writing, &c. The note, which was read on oyer, commences in these words:—“ Union county, State of Indiana, November 9th, 1836, on or before,” &,c. And it is signed—“ Joseph Reagan,- Absalom Stilton, M. Helm.” The defendants demurred to the declaration, on the ground of a variance between the note described in the declaration and the one read on oyer; and the Court gave judgment, on the demurrer, in favour of the plaintiff.

S. W. Parker, for the appellants. C. B. Smith, for the appellee.

The first variance alleged is, that the declaration, in stating the place where the note was executed, omits the words State of Indiana, which are in the note. The variance here pointed out is not material. It is not necessary, in an action on a promissory note dated at a particular place, to state the place of its date in the declaration. This point is expressly decided in Houriet v. Morris, 3 Campb. Rep. 303.

The defendant relies on the English practice in the case of specialties. And it is no doubt true, that, until the recent rule in pleading of 4 Will. 4, the English practice in actions on specialtiés was, to state the place of the date in the declaration,- whenever such place was shown by the bond. Mostyn v. Fabrigas, Cowp. Rep. 177. That practice, however, let the reason for it be what it may, was confined to declarations on specialties; and it is now changed in England even as to them., There is not at present, in England, according to the new rule of pleading to which we have referred, any venue whatever inserted in the body of the declaration in any cause, except where,- as in trespass quare clausum fregit, a local de-. scription is required. 3 Chitt. Gen. Pr. 470.

The other alleged variance relates to the signatures, of the defendants to. the note. The declaration might have been inore explicit on this subject, but still there is no ground in this part of the case for a demurrer.'

Per Curiam.

The judgment is affirmed, with 5 per cent. damages and costs. To be certified, áre.