State Bank v. Ward

3 Ark. 506

Opinion

Oldham, J.

The affidavit required to a plea denying the execution of the instrument sued upon forms no part of the plea. The insufficiency or want of the affidavit is no cause of demurrer. Hawkins v. Campbell, 2 Eng. R. 118. The demurrer admits the facts pleaded and merely refers the question of their sufficiency to the court, and in deciding upon it the court will not look to extrinsic facts. 1 Ch. Pl. 700.

“Nil debet and non assumpsit may be filed in all actions of debt or assumpsit on any instrument of writing not under seal; but such pleas shall not put in issue the execution of such instrument unless verified by affidavit. Rev. St. ch. 116, s. 104.

The question sought to be raised by the demurrer is one of evidence under an issue formed upon the plea. Upon the trial the question would have presented itself to the court, whether the execution of the note was put in issue. The Circuit Court correctly overruled the demurrer. Affirmed.