#### I. Rynders, Henry Higgins and Joseph R. Askew v. Coxie Brothers & Co.

I. Pleadings—Commencement in Debt.—A declaration properly describes an action of debt where, in the commencement, it is said, “ the plaintiffs complain of the defendants of a plea that they render to the plaintiffs the sum of $300, which they owe and unjustly detain from the plaintiffs.”

Debt, on an appeal bond. Trial in the County Court of Morgan County; the Hon. Charles A. Barnes, Judge, presiding. Judgment for plaintiffs on demurrer; appeal by defendants.

Heard in this court at the November term, 1898.

Affirmed.

Opinion filed February 7, 1899.

T. F. Smith and E. JEL Askew, attorneys for appellants.

J. J. Reeve and Morrison & Worthinton, attorneys for appellees.

Mr. Justice Wright

delivered the opinion of the court.

Appellees sued appellants in an action of debt upon an appeal bond, in the usual form in the Circuit Court from a justice of the peace. The declaration is in the ordinary form of such pleading. Appellants demurred to the declaration, which demurrer was by the court overruled, and appellants abiding by their demurrer, the court gave judgment for $300 debt, the penalty of the bond, to be satisfied on payment of $181.99, the damages assessed by the court, and also for costs. From this judgment appellants prosecute this appeal, and insist the court erred in overruling the *630demurrer to the declaration because, as claimed by counsel, the declaration is uncertain, in that it states the facts by way of recital and without positive averment, and also because the declaration does not conform to the summons in describing an action of debt.

We think counsel misapprehends the declaration in respect to the points made against it. When properly examined, its averments of fact are positive and direct. It states in positive terms that appellant made, executed and delivered the bond described in the declaration, and avers also, by way of describing the bond, that it contains certain recitals, specifying them, and then avers the condition of the writing obligatory, assigning the breach thereof. We are also of the opinion the declaration properly and accurately describes an action of debt where, in the commencement of the pleading, it is said the plaintiffs complain of the defendants “ of a plea that they render to the plaintiffs the sum of $300 which they owe and unjustly detain from the plaintiffs.”

We are of the opinion the declaration was sufficient, and the demurrer thereto was properly overruled.

The judgment of the County Court will be affirmed.