Carlisle v. Dubree , 26 Ky. 542 ( 1830 )

Chief Justice Robertson

delivered the opinion of the Court.

As the order drawn by the defendant in favor of the plaintiff, was not a bill of exchange, because it was drawn on a particular fund, assump-sit is not maintainable on it. The suit should be brought on the original consideration.

The declaration avers a special assumpsit, to pay the amount of the order, ¡('the person on whom if; was drawn should fail to do it in a reasonable time, and although there is a defect in the omission, to allege what the consideration for the order was, (the allegation being simply that the drawer was indebted $50 to the drawee.) Yet the verdict on the general issue cured this defect. If, therefore, the special as-sumpsit had been proved, the judgment might stand.

But there was no proof whatever of any special as-sumpsit, or of any other than what might be implied by the drawing of the order. The order had been accepted, and afterwards transferred to another person, by assignment upon it. And nothing was proved which would entitle the plaintiff in the action to maintain it, even if he had proved the assumpsit as alleged.

Brozvn, for plaintiff.

The circuit court ought to have sustained the demurrer to the evidence.

Wherefore, the judgment is reversed, the verdict setaside, and the cause remanded for ajudgment tobe entered on the demurrer, in favor of the demurrant.