Ray v. Woolfolk , 9 Miss. 523 ( 1844 )

Mr. Justice Clayton

delivered the opinion of the court.

This was an action of assumpsit, brought upon a promissory note executed by the plaintiffs in error, the defendants below. Besides the general issue, they filed a special plea, to the effect following: “ that the note sued on, was executed for and in consideration of a certain town lot in Brandon, sold by Charles S. Woolfolk, as executor of William R. Woolfolk, deceased, to the defendants, and for no other consideration ; and they aver that the whole consideration has failed, because neither the said decedent nor his said executor, ever had any title to said lot which they could communicate to the defendants.” To this plea, there was a general demurrer without the assignment of any cause, and the same was sustained by the court. The defendant then withdrew his other plea, and judgment was rendered against him.

There is no doubt that the special plea is very informal, and would be necessarily decided to be bad, if the defects had been pointed out by the demurrer. It does not disclose enough to enable the court to determine whether the consideration has failed or not. It states no warranty of title, and, for aught that appears, the purchaser might have agreed to run the risk of the title. It is therefore defective. See 2 How. 633. Yet, as the demurrer is equally general and indefinite, and does not point to any imperfection in the plea, we think it ought to have been overruled. See Packard v. Hill, 7 Cow. 442. Our statute directs that no defect or imperfection shall be regarded upon a demurrer other than those specially alledged, unless something shall he omitted so essential to the action or defence, that judgment according to law and the very rights of the cause, cannot be given. How. & Hutch. 615. Now, as the failure of the whole consideration is averred, we cannot say, because the mode ©f the failure is not stated, that something is omitted, so essential that judgment cannot be given according to law and the right of the cause. If the objection had been referred to in the demurrer, we could not have disregarded it. Perhaps one great reason for the enactment, is, that if the defect is pointed out by the demurrer, the party might amend in the court below; but if it is concealed until he comes into the appellate court, and the demurrer is there sustained, he is precluded from the amendment.

The judgment will be reversed, the demurrer overruled, and the cause remanded for further procedings,