Mayfield v. Allen

| Ala. | Dec 15, 1824

Opinion of the Court delivered by the

Chief Justice.

The first Error assigned is, that there is a variance between the endorsement on the writ and the declaration. The endorsement states asa cause of action anote under seal, dated 1st of August, 1818. The declaration charges the note to have been given on the 21st of August, 1818. After an appearance, the defendant is supposed to have been fully informed by the declaration of the cause of action against him, and after judgment, if he has taken no advantage of the variance, and as in this case appeared and said nothing in bar or preclusion of the action, it is to be inferred that he waived the objection. The judgment here is in substance by nil dicit, and not on default.

The second Error assigned is, that the original process was not executed on the defendant. It is a sufficient answer to this objection to say,- that after appearance it comes too late. But if it had been made in proper time, it appears thatthesheriff has returned the writ “ executed.”—The plaintiff in Error contends that the return should shew that the defendant had been served with a copy of the writ. I am of opinion, that the return here made implies that the writ had been executed in the manner prescribed by law.

Another assignment is, that the judgment is for too much; and the last Error assigned is, that the obligation is charged to have been made by two, and the breach is assigned as to one only.

In one of the several cases between the same parties, it appears that in the calculation of interest $1 too much has been allowed. If the other obligor had paid, it could have been given in evidence had the defendant thought proper to plead.

Let the judgment be affirmed.