Hoover v. Hays , 5 Mo. 125 ( 1838 )

McGirk, Judge,

delivered the opinion of the court.

Hays brought an action of debt against Hoover and Hayden, by petition and summons, on a promissory note, in the Boone circuit court, to the July term, 1837. The •defendants appeared and pleaded non assumpsit to the -action, and the plaintiff demurred to the plea, on the. ground that non assumpsit is not the proper plea to an action of debt on a promissory note. The circuit court sustained the demurrer, and gave judgment for the debt and damages. The sustaining this demurrer is the only matter alleged for error.

Non assumpsit is nota §oocl Rlef ,t0 by petition .and summons,

Messrs. Adams and Hayden, counsel for the plaintiffs in error, seem to suppose that the ground on which the court below decided was, that the plea of non assumpsit was a bad plea without affidavit. But that was not the ground on which the case turned in the circuit court.

Mr. Kirtly, of counsel for Hays, puts the matter oa the ground,, whether non assumpsit can be pleaded to an action of debt on a promissory note? This court have no difficulty in deciding this case, according to the common law. The plea must be suited to the nature of the action; in all actions of debt on promissory notes, the plea or genera! issue is nil debit.; in actions oi assumpsit, non assumpsit is the proper plea. But it seems, the counsel for the defendants in the court below have been under the impression that, as this was a petition and summons, any plea might be pleaded vs hich would be a proper answer to the nature of- the demand, and they seem to rely, to give countenance to that doctrine, on the case of Fenton v. Williams, 3 Mo. R. 229. The counsel for the other party relies also on that caée. . In that case, the court decided that, as the petition and summons law did not give name to the action, there could be no reason why the suit should not be in debt, if the injury lay in debt; and so of assumpsit, if the injury lay in assumpsit. But the last act in the late Revised Code, declares positively-that the action shall be debt in all cases. I.think it therefore follows that the general issue must be nil debit, o.r non est factum, as the. case may. requre, and?that no other general issue can be pleaded. It has long ago been decided that, under our statute, forbidding-a party to deny the execution of an in instrument sued on, he may plead non est factum, non assumpsit, or nil debit, according to the nature of the action, without affidavit; and that the fact., .whether or not the affidavit be there, is the test whether or not the plaintiff must prove..the manual execution of the writing. In the case before us, the action, as it should be by the act of 1835, was debt. The plea was non assumpsit; and on demurrer, the plea was adjudged bad, and rightly so adjudged, not because there was no affidavit, but because the plea did not suit the nature of the action. I am of opinion the judgment of the Boone circuit court ought to be affirmed; and the other judges concurring herein, it is affirmed.