Robertson v. Banks , 9 Miss. 666 ( 1844 )

Mr. Justice Clayton

delivered the opinion of the court.

This was a declaration in assumpsit, to which the defendants filed a demurrer and assigned various causes, which will be noticed in their order.

The first is, that it is not averred in the declaration that Mary H. Banks, one of the plaintiffs, is the same person called M. H. Banks in the promissory note sued on. If-there be a variance between the instrument set forth in the declaration, and that to be offered in evidence, the defendant may crave oyer, if it be an instrument of which oyer ought to be granted, and demur; or he may object to it, when offered in evidence to the jury. The variance cannot be reached, as was attempted in this case by a mere demurrer to the declaration.

The next cause is, that the action is brought against the defendants, individually, and not as guardians, the note sued on being signed by them as guardians. The words, “as guardians,” must be considered as merely descriptive of the persons, and cannot operate to exclude the right of the plaintiffs to sue them in their individual capacity. Buffum v. Chadwick, 8 Mass. Mart, and Yer. 261.

The third caitse is the same in substance with the second, and need not receive a separate consideration.

The fourth cause is, that the defendants are not sued as husband and wife, when the cause of action shows that relation to subsist between them. If this objection were sustained by the record, it would be fatal. But there is no averment in the declaration or elsewhere, that they are husband and wife. The signature to the note sued on, and which is copied into the declaration, is as follows: “C. G.. Robertson, guardian, H. D. Robertson, guardian rights of my wife, C. G. Robertson.” Now although it is very possible that these parties are husband and wife, yet there is no allegation to that effect, and no such certainty as would justify a judgment upon the demurrer. , The O. G. Robertson, whose signature is annexed to the note, may, for aught this court can know, he a different person from C. G. Robertson the wife of H. D. Robertson. Had the defendants pleaded this matter in abatement, and sustained it by proof, the plea must have been supported, because nothing is better settled than that a married woman cannot, be sued at law, for a cause of action accruing after the coverture.’ But upon the demurrer, as it does not appear certainly, that the parties were married, or that the cause of action accrued after coverture, the objection must be overruled.

There are other causes assigned, but they are obviously insufficient to produce a reversal, and need not be noticed in detail.

The court overruled the demurrer—the defendant then applied for leave to plead, which was refused unless upon affidavit of merits. This was entirely in accordance with the statute. H. & H. 615.

The judgment is affirmed.