PIKE V. FRASER. VOL. 17 tured, the plaintiffs failed to pay auy part of them, and the defendants had been compelled to pay a part of them, and had been sued on the others wherefore, the consideration had 2. "That said promissory note in the said plaintiff , ' declaration mentioned was made, executed and delivered to the • said '*plaintifri, in con [."':59$ sideration that they would pay off and discharge certain bills of exchange before that time drawn by the said defendants 597 ] GPIKE ET AL. and the said defendants, in fact say, that the said plaintiffs, nor either of V. them, did, or would, after the execu-FRASER & CO. tion of the said note, pay, liquidate or The breach, in a declaration in debt, that the de-discharge said bills, or either of them, fendant had not pahl the plaintiff, "or any other in manner aforesaid, or otherwise how-poison whomsoever," is not objectionable as too soever, but the said hills of exchange, broad. Eve: y intendment must be taken against the and each of them, still remain subsist-pleader ; and so, a plea, that the cons'deration of ing demands against the said defend-the note sued upon was, that the plaintiffs would ants, to-wit: at the county aforesaid, pay oir certain bills of exchange drawn by the de-, and this the defendants are ready to fenda ts, averring non-payment, but failing to allege that the time fixed by the contract for pay-verify," &e. ment bad arrived—held insufficient. 3. No consideration. Appeal from Monroe Circuit Court. 4. Nil debet. 5. Payment. HON. CHARLES IV. ADAMS, Issues were formed on all except the Circuit Judge. second plea, and tried by the court sit-Fou ger & SWIwell, for the appellant. ting as a jury, upon evidence introduced on bath sides. Verdict was Rke & Cummins, contra. found for the plaintiffs below,. for the SCOTT, J. This was an action of debt sum of $2811.85 debt, and $423.40 dam-in the Monroe circuit court, on a prom-ages, and judgment rendered accord-issory note, for $2811.85, made by ap-ingly.. The defendants excepted, gen-pellants, payable to appellees or bearer, erally , to the verdict and judgment, three days after the fifteenth day of and took a bill of exceptions setting June, 1852. The declaration is in the out all the testimony ; but •did not usual form down to the breach, where move for a new trial, nor in any other it is said that the money had not been wise save any foes . ion of law in relal paid to the plaintifis, "nor to any tion to these issues, in the progress of other person whomsoever." the case, nor as to the finding and Defendants interposed five pleas ; judgment of the court upan their de-1. That the note was given on the termination. State Bank v. Conway, consideration that the defendants had 13 Ark. Rep. 344. drawn certain bills (describing them), To the second plea set out above, the which the plaintiffs undertook to pay plaintiffs below interposed a demurrer, at maturity. But when the bills ma-which the court sustained. 'Flue only
JAN. TERM, 1856. -question in the case is, therefore, as to the action of the circuit court upon this demurrer. The counsel for the appellants say nothing in favor of this plea, but as the demurrer runs back to the declaration, .object that the breach is too wide, in the negation that the money declared for had not been paid by the defendants below, to the plaintiff, nor to "any other !person whomsoever." We think there is nothing in this objection. We think, too, that the plea was bad. It was not sufficiently -certain. No certain issue could be formed upon it. I t may be admitted to be true, and yet the plaintiffs below 5991 , "' may not have broken their contract to pay pie bills. They might not have matured,or otherwisethe time for payment, as fixed by contract, might not have arrived; and every in-tendment must be taken against the pleader. Finding no error, the judgment of the court below will be affirmed, and five per cent damages will be awarded in this court upon the sum recovered in the circuit court.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.