Price Williams & Sons v. McConnico , 44 Ala. 627 ( 1870 )

B. F. SAFFOLD, J.

If the citation to the garnishee, (Revised Code, § 89M), ought to contain an accurate description of the capacity in which the plaintiff sues, the error objected to is amendable, the record being right in every other part, and- can not be presented for the first time in this court, after appearance in the court below.— Rev. Code, §§ 2809, 2810, 2811; Moore & Lyons v. Stainton, 22 Ala. 831; Daniel v. Hopper, 6 Ala. 296; Smith v. Chapman 6 Porter, 365.

Without proof of some contract or usage of trade, that commission merchants are merely depositaries, and not liable for interest until demand made and default, the court can not know that a commission merchant is not chargeable with interest on a balance in his hands in favor of the principal.

The judgment is affirmed.