Wade v. Kelly , 2 Stew. 443 ( 1830 )

By JUDGE TAYLOR.

The only errors assigned in this cause which can be noticed, are the second and third.

The 2d is, that “ the Court below erred in overruling the plea in abatement.” After the plea was “ overruled,” the defendant pleaded to the merits; by doing this, according to previous decisions of the Court, he waived all irregularities in the proceedings relative to that plea.

The 3d assignment is, that u the Court erred in giving judgment for $500 debt, and $47 damages.” The action was instituted on a note for $500. In the indorsement on the writ, it is stated by the plaintiff’s counsel that the note was credited by $30; the defendant, before pleading in abatement, craved oyer of this indorsement and set it out. The defendant, at the trial term, withdrew his plea, and judgment was taken by nil dicit, without the intervening of a jury, for the whole amount of the note, without deducting the credit indorsed on it. By statute, mistakes of this kind can be rectified upon motion in the Court below, but where it appears in this Court that such mistake has been made, it may be corrected at the costs of the plaintiff in error.

Let such judgment be rendered here as should have been rendered in the Court below, at the costs of Wade.

Reversed and rendered.