Thomas ex rel. Kyle's Ex'rs v. Miller

1 Miss. 324

• Court: Mississippi Supreme Court
• Decided: December 15, 1829
• Status: Published

Opinion

OPINION OF THE COURT. — -By

JUDGE NICHOLSON.

The plaintiff declared on a promissory note for fifty dollars, and said nothing as to the interest. The defendant plead in abatement to the jurisdiction of the court; the plaintiff replied by denying the plea, and stated that the sum was over fifty dollars, and concluded to the court, to which the defendant rejoined, and also concluded with a verification. This was mispleading; the defendant should have demurred to the declaration in ttje first instance, because the plaintiff did not shew that his, demand exceed^fifty dollars; or as the plaintiff’s replication, set forth a matter of fact, and concluded to the court, the defendant might have demurred to the replication, which would have thrown the judgment of the court back on tt*. plaintiff’s defective declaration, and the judgment must have been for ti» defendant. The court below, improperly tried the matter of fact set up dle plaintiff’s replication, and gave judgment for the defendant. In this thei\.Was error. The judgment of the court below, must therefore be reversen,and the cause sent back with leave to amend the pleadings. The court is fa^er of opinion, that in an action on a promissory note for the exact amount fifty dollars, the plaintiff must declare for interest, in order to give the Cv»,rt jurisdiction, he must shew that his demand exceeds fifty dollars. See 4th ,ec. 0f the 5th article of cqnstitution of Mississippi.

Judges Black and Cage concurred.