Clarke v. Gregory ( 1840 )

Per Curiam.

At the May term, 1837, of the circuit court of Madison county, the defendant in error recovered a judgment against the plaintiffs, in an action of debt upon a bill single. The defendant sued as assignor of the original obligee of the writing. The plaintiffs filed the plea of payment, which was subsequently withdrawn, and judgment upon nil dicit regularly rendered by the court.

Several errors have been assigned, all of which, however, have been abandoned, as appears by the written abstract of the counsel for the plaintiffs, except the one, which takes an objection to the mode of assigning the breach of the contract in the declaration. In the breach, there is no averment that the money sued for, had not been paid to Angus Clark, the payee of the bill single, before his assignment to Gregory.

If this objection were good when taken by special demurrer, it is certainly not available after judgment upon nil dicit.

Let the judgment be affirmed.