Cain v. Mather

Hitchcock, J.

This was a writ of error from the Circuit Court of Madison County. There' was a demurrer to the declaration by the defendant, which was sustained in the Court below, upon which judgment was rendered for the defendant.

The ground of the decision of the Circuit Court appears to be, that as the defendant is stated in the declaration to have been attached h} his goods and chattels, and, as the declaration'states the plaintiff’s cause of action to be to recover damages for the false warranty of a quantity of jewelry, and thereby sounds in damages only, that the attachment does not lie.

We do not think this question is raised by the pleadings in this case. A general demurrer brings only to the notice of the court, matters of substance to the declaration, and though it appears by the de-< claration, that the defendant was attached by his goods, it may be, for aught that we can know, a judicial attachment, which extends to all kinds of actions. We cannot look behind the declaration, which contains a substantial cause of action.

*225 As to the point upon which the Court below is supposed to have sustained the demurrer, the case' having been argued exparte, there being but two judges competent to set in the case* and as it cannot arise in the farther prosecution of this case* we do not deem it proper to consider it.

Let the judgment be reversed and the cause remanded.

Hopkins, J., not sitting in this case, having beeii bf counsel below.