Carroll v. Corn

Cook, J., delivered the' opinion of the Court. - This was an. action of assumpsit, founded, on a promissory note,, given hy the intestate, Henry Carroll, in ,his lifetime^ to the'defendant in error. The defendant plead non-assumpsit, and that he was. not the administrator of the said Henry Carroll... The plaintiff demurred, generally, to. the plea of non-assumpsit, and took issue on the other plea. The points presented for the consideration of this Court, and, relied on for the reversal of the judgment of the Circuit Court, are, that the Court erred, in sustaining the demurrer to the plea of non-assumpsit, and also, in refusing to exclude the record of the letters of administration, offered in evidence by the plaintiff, as stated in the bill of exceptions, in support of the judgment of the Circuit Court on the demurrer. A statutory provision of this State, (Digest 250, sec. 2,) is alone relied on, which, it is contended, gives to simple contract writings, equal dignity with sealed instruments, except as to the operation of the statute of limitations. This construction of the statute, we conceive, is much broader than the Legislature intended, or the words of it will warranty the substance of the provision is, that any writing, upon which an action is founded, shall be received in evidence of the debt or duty for which it was given y and the execution of such writing shall not he denied, unless by plea,, supported' by affidavit. The whole effect of this provision is, to change a rule of evidence, by which the plaintiff was bound to prove the execution of a simple contract writing, before the writing itself could he given in evidence of the debt or duty for which it was given ; and although, at common law, the plea of non-assumpsit imposed this necessity upon tire plaintiff, yet its operation is not thus limited it puts him to the proof of every matter of fact necessary to his recovery, and lets in, in most cases, every defence which the nature of the action will admit of. This Court finds no difficulty in construing- the statute-referred, as to the manner in which the' execution of the simple' contract writing declared on, shall be put in issue.. It manifestly contemplates a- special plea, i» terms denying the execution off such writing. On the other points, the Court see no error in the record. The judgment must be reversed^ with costs, the' cause sent again to. the Circuit. Court, and judgment rendered for the defendant on the demurrer to'the plea of »o»assumpsit,Unless the plaintiff shall ask leave to'withdraw lids- demurrer, and take-issue on the plea.