#### HENRY HUGHES v. W. H. WHEELER.

Under the old system, if the declaration is in case, and it does not further appear whether the action, is in tort or contract, it will be regarded as ambiguous or doubtful pleading.

"Where the defendant understood the action to he in tort, and the plaintiff did not disclaim it, but offered evidence to establish a breach of contract, such action cannot be sustained.

This was an action on the case brought under the old system, tried before Henry, J., at Fall Term, 1870, of Forsyth Superior Court.

The plaintiff npon the trial offered in evidence a note executed by the defendant to plaintiff in which the defendant promised to deliver the plaintiff a quantity of wheat; and claimed dam•ages for the non delivery of the wdieat in accordance with said •contract. Plea, general issue. There was no declaration in writing, and only a statement that the plaintiff declared in ease. The defendant asked the Court to charge the jury that the action •could not be sustained, and that plaintiff should have declared in assumpsit. His Honor held that the action ¡was properly brought, to which defendant excepted. Yerdict for plaintiff. Rule, &c. Judgment, and appeal by the defendant.

T. J. Wilson, for defendant.

Masten and Blaekmer & MeOorMe, contra.

Rbade, J.

The declaration is in case, the action having been commenced under the -old system, but it does not appear whether in tort or contract. This is what is called “ ambiguous or doubtful pleading,” and therefore bad, 1 Chitty Pl, 271.

The defendant took the objection that the action would not lie. From this it would seem that he understood the declaration to be in tort, and the plaintiff did not disclaim it. In *419^answer to the objection his Honor held that the “ action would lie.”

But still it does not appear, except by inference, and from that obscurely, whether the action is founded in tort or contract.

If in tort it is misconceived. Case, nothing more appearing, •is generally understood to be in tort. 1 Chitty Pl. 151.

•For the error in this particular there must be a venire de ■novo, which is to be regretted, as the merits seem to be with ¡the plaintiff.

The bad pleading however is his own fault.

Fee Curiam. Venire de novo.