M'Mahan v. Kyle , 9 Port. 507 ( 1839 )

COLLIER, C. J.

We are at loss to discover the cause for which the demurrer was sustained by the Circuit court. True, the notice was not returnable before the justice who issued the execution, yet it recites that he was not in office at that time: so that if it were material to the plaintiff’s case, we would intend the justice who rendered judgment on the notice, was the successor to him, who issued the execution; and by this intendment, the defendants could not be prejudiced, for if it were unfounded, and the truth of the fact would avail them as a defence, it might be shown by proof.

It surely cannot have been supposed, that the joinder of two distinct grounds in the notice, was not allowable: if this was not permissible by law, it afforded no cause for sustaining the demurrer. The Circuit court could have put the plaintiff to his election, or, if the notice was otherwise defective, as a statement of the cause of complaint, could have caused the pleadings to be made up under our statutes; so that the record should present, fully and fairly, the case to be tried — (Aik. Dig, 175, sec. 80; 300, sec. 7; 260, sec. 10; 261, sec. 12.)

We are unable to find any ground on which to rest the judgment of the Circuit court — It is consequently reversed, and the case remanded, 1