Shelton v. Bruce

17 Tenn. 24

• Court: Tennessee Supreme Court
• Decided: March 15, 1836
• Status: Published

Opinion

Turley J.

delivered the opinion of the court.

The instrument declared on, is called in the declaration a promissory note or writing obligatory, which, it is contended, is a fatal variance, as it is neither. It ⅛ true, this is not a promissory note or writing obligatory; but we think it makes no difference by what name a written contract may be called, if it be set forth correctly in the declaration; which is done in this case. But there, is no consideration alleged in the declaration to support this contract, which is necessary in all cases, except those founded on negotiable paper or sealed instruments, which this is not. See Chitty on Bills, 8, 9: 7 John. Rep. 321: 7 Term Rep. 350,. and many other cases.

This is a fatal defect in the declaration, and may be taken advantage of by demurrer, motion in arrest of judgment, or a writ of error. 1 Chit. Pleadings, 329: 7 Term Rep. 348: 4 Bar and Cross, 34. Here the question arises upon a demurrer to a plea of the defendant below. It is well settled, that a demurrer filed by either party reaches the first defect in pleading. In this case, it is in the declaration, and the court below therefore erred in sustaining the demurrer. Let the judgment be reversed, and be entered for plaintiff in error.

Judgment reversed.