Smith v. Webb

Catón, J. A general demurrer was filed to the declaration, which was overruled by the circuit court and judgment rendered thereon; and this decision of the court is assigned for error. The objections to the declaration are, that it commences and concludes in debt; but, in the body of the declaration, it is averred that the defendant promised instead of agreed to pay, and also, that the instrument declared on is called a promissory note, and stated to be under the hand and seal of the defendant. The first objection is precisely answered by the decision of this court in the case of Cruikshank v. Brown, 5 Gilman, 75. In that case, the same identical objection was raised to the declaration, to which the court said : “We do not, however, admit that when a contract is specially declared upon, and the count possesses all the attributes of a count in debt, commencing and concluding as such, that it is to be regarded as a count in assumpsit, merely because the word promised is used in place of the word agreed. ” In that case the count was held good, and from, that decision we are not inclined to depart. Nor is the second objection any more valid. Admitting that the pleader misnamed the instrument sued on, by calling it a note instead of a covenant or an agreement, we do not think it fatal to the declaration, and especially upon general demurrer. The party was not misled or injured by it. The judgment of the circuit court must be affirmed. Judgment affirmed.