Hynson v. Ruddell, 11 Ark. 33 (1850)

Jan. 1850 · Arkansas Supreme Court

11 Ark. 33

Hynson et al. vs. Ruddell et al.

Where there are two counts in a declaration upon two notes, profert of both notes at the conclusion of the last count is sufficient.

Writ of Error to the Independence Circuit Court.

Debt, by Ruddell & McGuire, against Hynson & Zollicoffer, determined in the Independence Circuit Court, in September, 1849, before the Hon. Win. C. Scott, Judge. The facts appear in the opinion of this Court.

Fairchild, for the plaintiffs.

The two counts are for different causes of action, and each must contain all allegations necessary to a recovery : and, as in the first count, there was no pro-fert, the demurrer should have been sustained.

Fowler, also for the plaintiffs,

contended that there was a mis-joinder of debt and assumpsit, which might have been taken advantage of on demurrer, arrest of judgment or error, (1 Chit. PI. ed. of 1809, 206, 394): that, in an action of debt, to allege that the defendant promised to pay, is bad. (2 McLean's Cir. Ct. R. 364. 5 Eng. Com. Lazo R. 264. 1 Chit. PI. 345.) The counts are as distinct as if in separate declarations, and each must contain all the allegations necessary to its validity. 1 Chit. PI. 397.

Byers & Patterson, contra,

contended that sufficient profert of the notes sued upon was made in the declaration; that it is not important in what part of the declaration profert is made ; and though the declaration is not drawn according to approved precedents, it is sufficient under sec. 60, ch. 126, Dig.

Mr. Justice Walker

delivered the opinion of the Court.

There are two counts in the declaration, each averring an indebtedness by note. In the first, no profert is made of the note declared on: in the second, after describing the instrument and averring an indebtedness, there is the following averment: “And the said plaintiff produces here in court the several promissory notes, upon which this suit is founded, as evidence of the aver-ments aforesaid.” The defendants demurred to the first count in the declaration, assigning, for special cause of demurrer, that profert had not been made of the note in that count declared on.

The necessity for making profert, is not controverted, and the only question is one of fact, was this independent averment of profert, although not made in the same count, sufficient? We think it was, and that the demurrer was correctly overruled. It is true that each count must contain within itself a distinct cause of action, yet we apprehend that the cause of action is as perfectly stated without as with a profert. Profert is designed to furnish the court and defendant an opportunity to inspect the instrument declared on, not to add to a cause of action, otherwise imperfectly stated. It never becomes part of the pleading unless the defendant makes it such by craving oyer, and setting it out. Therefore, if oyer be tendered by an averment in any part of the declaration, we hold it to be sufficient.

The second objection, that there is a misjoinder of counts, is, we think, not sustained by the facts. The counts, though carelessly drawn, are substantially in debt.

The judgment of the Independence circuit court is, therefore, in all thing's, affirmed, with costs.