Fulcher v. Lyon

By the Court, Dickinson, J. The plea in abatement renders an inquiry into the previous proceeding’unnecessary, except as to the cause of abatement pleaded, viz:- variance between the writ and declaration. The latter states the damages at $300; the former at but $70. The demurrer to this plea was unquestionably well sustained; for we consider it wholly immaterial, under our statute, at what amount the damages were stated in the writ. But the judgment, upon its face, is erroneous, for it ought to have been an interlocutory judgment of respondeat ouster. It is_also erroneous, because the writing obligatory sued on, bears ten per cent, interest per annum, from maturity. There is no breach in the declaration, alleging the non-payment of interest, yet judgment is rendered for the amount of debt claimed, and six per cent, interest from the date of the writing. The transcript presents another error, fatal to the whole proceedings, and shows that there was no cause of action existing. The suit was instituted on the 19th of September, 1840, upon a writing obligatory, dated on the 6th of September, 1840, payable twelve months after date. Consequently, it was not due until the 6th of Sept., 1841. Judgment reversed, with leave for the parties to amend the pleadings, if leave be asked.