Munsell v. Philips , 28 Ky. 77 ( 1830 )

Chief Justice Robertson

delivered the opinion of the court.

The circuit court having overruled a demurrer to a plea in abatement, in an action of covenant, brought by Munsell against Philips, Munsell prosecutes this writ of error.

It is not necessary to decide whether the plea was good or not; because the declaration contains no cause of action. Philips is sued as heir, on a covenant by his ancestor to pay “fifty dollars” for corn to be delivered to him (the ancestor.) The declaration contains nothing which shows any cause of action against the heir; or that the circuit codrt had jurisdiction; or that any thing had ever bécome due to the covenantee.

Wherefore, as the demurrer involved the declaration as well as the plea, the judgment of the circuit court was right, although the plea may be insufficient.

Judgment affirmed.