3 Ala. 154 | Ala. | 1841
The variance between the writ and declaration, is certainly such as is supposed; but it has been repeatedly held, that a variance between the writ and declaration, cannot be reached by general demurrer, but must be brought to the view of the Court by plea in abatement.
The word “administrator,” which follows the name of Ma-gee in the commencement of the declaration, is a word to which no definite meaning can be attached, in the connection in which it is found. It does not show of what, or of whose estate he is administrator, and cannot even be regarded as descriptio per-sones. The declaration then, was at the suit of Magee, individually. This being the title which the declaration had given to the action, it was irregular to substitute as a plaintiff, Wm. S. Paine, administrator, do bonis non of James Goodwin, deceased. Thtf cause of action as disclosed by the declaration, was the indorsement of Curry & Co. of a promissory note to Magee, and on that, the administrator of Goodwin could
But for the second objection here taken by the plaintiffs, the judgment of the County Court is reversed, and the cause remanded, that it may, if practicable, be regularly proceeded in by the plaintiff below.