19 Ala. 216 | Ala. | 1851
Tbe only question for our consideration is, whether there was such a want of conformity between the writ and declaration, as to justify the court in rejecting the latter. It was said in Sexton v. Roane, 1 Ala. 830, that the design of the Legislature, in requiring the cause of action to be endorsed upon the writ, was to apprise the defendant of the matter in controversy, so that he might not be taken on surprise, &c.— We think there could have been no surprise -in this case. The suit by the plaintiff below was brought in his individual capacity, and the writ and declaration agree as to the character in which he sues. The cause of action as endorsed -on the writ substantially agrees with that described in the count; at all events, there is not such a radical departure or variance, as under our decisions, authorized the court to reject the declaration. -See Tenison v. Martin, 13 Ala. 27, and cases cited. Whether .the bond declared on is not assets of the estate of Smith, is a question which cannot be presented in this way, and one which we do not now decide.
The judgment of the Circuit Court, reversing the judgment -of the County Court, must be affirmed.