5 Ala. 182 | Ala. | 1843
The judgment in this case was taken by default, the defendant having been regularly served with process. It is admitted that the judgment is regular, unless we look to the indorsement on the writ, by which it appears that the suit was commenced on a lost note. ’
In the case of Wharton v. Franks, [9 Porter, 232,] we held that a variance between the endorsement on the writ and the declaration, could not be pleaded in abatement; and in the case of Williams v. Powell, [same book, 493] that the indorsement on the writ cannot be referred to for the purpose of reversing a judgment. These decisions are decisive of this case, as without looking to the indorsement on the writ, it is impossible to know that this suit was on a note which was lost when the action was brought, and the default is an admission of all the facts stated in the declaration. We do not wish it under’stood, that if the fact' of the loss of the note had appeared in the declaration, it would have varied the case; but it is not necessary now to determine that question.
Let the judgment be affirmed.
