Sevier v. Wilson

Decided January 15, 1848

Supreme Court of Arkansas · decided 1848-01-15

Writ of Error to Pulaski Circuit Court. Debt, determined in the Pulaski Circuit Court, in November, 1847, before the Hon. Wit. H. Field, Judge. Henry S. Wilson sued Ambrose H. Sevier, on a writing obligatory for $504 56, alleged in the declaration to have been executed by Sevier to Wm. Norman, of Indiana, by him assigned (by his agent, Rieley,) to McClelland, and by him endorsed to plaintiff.

Decided 1848-01-15

Oldham, J.

¶1At common law nil debet is a bad plea to debt on a bond, where the bond is the foundation of the action; but in case issue be taken upon it, the plaintiff is bound to prove every allegation in his declaration: 1 Ch. Pl. 519.- and consequently the execution of the bond. Under our statute, non est factum may be stricken out, if not sworn to, and, for stronger reasons, nil debet may be. Sillivant & Thorn v. Reardon, 5 Ark. R. 140.

¶2• The second plea filed by the plaintiff in error, is an argumentative denial of the assignment of the bond of Norman. A plea, denying the assignment of any instrument in writing made assignable by law, must be supported by the affidavit of the defendant. Rev. Stat., chap. 11, sec. 4. There is no error in the judgment, and the same is therefore affirmed.