Bates v. Hinton
| Decision Date | 30 June 1835 |
| Citation | 4 Mo. 78 |
| Parties | BATES v. HINTON. |
| Court | Missouri Supreme Court |
M'GIRK, J.
Mary Hinton sued Bates by petition and summons on four several bonds, the defendant pleaded six pleas. 1st, payment. 2nd, non est factum. 3rd, set off. 4th, that the bonds were given for three negroes sold by Clayton B. Hinton to defendant, and represented by C. B. Hinton to be slaves for life and to be his property, the plea then avers the slaves were not his property. 5th, that this plea says Mary Hinton sold these slaves to him and represented them to be her property, and says she held them by will from her husband, which will makes no provision for children. 6th, plea is a former recovery from defendant on the same bonds; issue was taken to the pleas of payment and set off. The plaintiff replied nul tiel record to the plea of former recovery, to which there was no rejoinder, and judgment by default thereon. The plea of non est factum was stricken out on motion for want of an affidavit. The 4th and 5th pleas were demurred to by plaintiff, the demurrer sustained--judgment for the plaintiff Hinton on the issues of fact, &c. The first point made is, did the court err in giving judgment by default against the defendant Bates for want of a rejoinder to the plaintiff's replication of nul tiel record; we are of opinion there is no error on this point. In 1 Chitty's Pleading 520, the law will, be found to be that where there is a record pleaded of another court, the replication of nul tiel record may conclude by giving the other party time or a day to bring in the record, or may conclude with an averment and prayer of debt and damages. In the former case the issue is complete, but in the latter case there must be a rejoinder, re-asserting the existence of the record. This is exactly the case here, this former recovery is of another court, the replication prays the debt, damages, &c., and there should have been a rejoinder.(a)
The next point made is, that the court erred in striking out the plea of non est factum for want of an affidavit. It has so far as regards suits on unsealed instruments several times on solemn argument been decided that non-assumpsit may be pleaded without affidavit, and that in all such cases the plaintiff is entitled to read the note without any proof of its execution, but then the defendant may under the plea show matter in avoidance. We see no reason for any distinction between the case of a bond and note. The counsel ...
To continue reading
Request your trial
-
Hofheimer v. Losen
...issues made by the pleadings cannot be changed by instructions. Northup v. Ins. Co., 47 Mo. 435; Nelson v. Brodhack, 44 Mo. 596; Bates v. Hinton, 4 Mo. 78; Cable v. McDaniel, 33 Mo. 363; Adams v. Trigg, 37 Mo. 143; Darrett v. Donnelly, 38 Mo. 492; Glass v. Gelvin, 80 Mo. 303. The undertakin......
-
Hofheimer v. Losen
... ... made by the pleadings cannot be changed by ... instructions. Northup v. Ins. Co., 47 Mo. 435; ... Nelson v. Brodhack, 44 Mo. 596; Bates v ... Hinton, 4 Mo. 78; Cable v. McDaniel, 33 Mo ... 363; Adams v. Trigg, 37 Mo. 143; Darrett v ... Donnelly, 38 Mo. 492; Glass v. Gelvin, 80 ... ...
-
Zervis v. Unnerstall
...denial, still the failure to do so admits only the execution; all other advantages under his plea are still open to defendant. Bates v. Hinton, 4 Mo. 78; Payne Snell, 4 Mo. 238; Snowden v. McDaniel, 7 Mo. 313; State v. Ferguson, 9 Mo. 288. MAURICE CRAMER, for the defendant in error: No decl......
-
George T. Smith Middlings Purifier Co. v. Rembaugh
...statute requiring the affidavit in order to put plaintiff to the necessity of proving execution of note. Klein v. Keys, 17 Mo. 326; Bates v. Hinton, 4 Mo. 78; Carpenter v. Inhabitants Lathrop, 51 Mo. 498. II. Under such answer defendant may prove that his signature was obtained by fraud, or......