Rose v. Peyton ( 1810 )

OPINION of the Court, by

Judge Logan.

The only error assigned in this cause is, that Peyton had sued out a writ against Rhodes, and caused it to be served upon him ; and thereupon declared against the plaintiff in error, who was never served with the writ.

So far as this assignment of error is intended to bring in question the variance between the writ and declaration, the matter is available only in abatement, and cured by the statute of jeofails. And so far as it is intended to make the question, whether the person upon whom the writ was served was the plaintiff in error, it is matter of fact, and cognizable only in the court below, by writ of error coram nobis.

Judgment affirmed.