Stapp v. Lapsley

16 Ky. 238, 1 Litt. Sel. Cas. 238, 1817 Ky. LEXIS 1

• Court: Court of Appeals of Kentucky
• Decided: April 19, 1817
• Status: Published

Opinion

Opinion of the Court, by

Judge Logan.

THIS was an action of debt, in which Lapsley declared against Stapp, &c. that on the — day of — the defendants, by their writing obligatory, promised to pay to the plaintiff the sum of $200, on application, provided William Williams should not pay it on demand, at any time between the date of the writing and the first day of March succeeding. The defendants demurred to the declaration, and judgment was given for the plaintiff. The declaration contains the necessary averment of a demand on Williams before the first day of March 1816, and the refusal of the defendants to pay, &c.

From the declaration, it was incumbent on the plaintiff to have demanded payment of Williams before the first of March succeeding the date of the writing, in order to entitle him to recover of the defendants; but as the date of the writing is not inserted in the declaration and oyer not taken of the writing, we cannot take judicial notice thereof; and, for what appears from the declaration, the writing declared on may have been given in some previous year; so that a demand on Williams, in February 1816, would not have justified this action; for it is necessary on the part of the plaintiff, to show, with reasonable certainty, a cause of action, by proper and substantial allegations; and judgment should have been rendered on the demurrer in favor of the defendants.

The judgment must, therefore, be reversed with costs, and the cause remanded, with leave for the plaintiff to amend his declaration, should he apply therefor; or, on his refusal to do so, then to enter judgment in favor of the defendant.