Collier v. Crawford ex rel. Bright , 1 Minor 100 ( 1822 )

ASSUMPSIT in Clarke Circuit Court on a note of plaintiffs , in Error. The writ issued H4ih August, 1821, returnable to October, term, 1821, By its indorsement the note appeared to be due 25th December, 1821. The declaration described thé note as due December 25th, 1820. The defendants plead in abatement, that at the commencement of the suit the note was not due. • Immediately after the plea, the transcript .of the Record proceeds thus, “ April term, 1822, judgment by “ nil dicit. Whereupon it is considered by the Court that “ the plaintiff do recover from the defendants,” &c. (setting-out, the amount.)

The matter assigned as Error appears in the opinion of the Court delivered by Judge Crenshaw.

The indorsement on the writ is to give the defendant an intimation of the'cause of action. That the cause of. action did not accrue before the action was commenced, was a «natter properly pleadable in abatement. As the matter appeared in the proceedings, it was not necessary that the plea should be on oath. A reference to the declaration. for the limé when the .note was due, would show a variance between the writ and declaration, and not help the Error. This was a sufficient plea, and should have been replied to, or in some manner disposed of, before the plaintiff could be entitled to judgment- by nil dicit. We are unanimously of opinion that the judgment must be reversed.