Kenefick v. Caulfield

Lacy, J. (after stating the case), delivered the opinion of the court. The first error assigned here is that the court erred in overruling the demurrer to the declaration. The declaration is in the Aisual form, and is Avithout defect. The next is that the court refused to continue the case because of the absence of a material witness. If this be a fact, the record does not disclose it. The next is that the court overruled the motion of the defendant to set aside the verdict and grant the defendant a new trial, upon the ground “ because the court overruled the demurrer to the declaration, because the return of the sheriff Avas insufficient, and because the levy of the attachment and the return thereon .was .irregular and insufficient, there and then being no bond given when the attachment issued, and because the account filed with the declaration had no date.” [124] As to the demurrer, we have said that- there was no error of the court in overruling that. There is. no defect in the return of the sheriff, which is sufficient, As to the assignment that no bond was given by the plaintiff when the attachment was issued, none is required by our statute, unless the sheriff is directed to take the property into his possession, which was not done in this case. Section 2968 of the Code of Virginia. As to the date of the account, the date of the account was stated in the declaration with which it was filed, and it was presented as a debt due at the date of the suit, and the verdict was rendered accordingly. Again, that the declaration does not allege any promise to pay the debt. This is a mistake of fact; the declaration does allege a promise to pay the debt. Exceptions are set forth here to the attachment, but in the court below there was no excejrtion taken to the attachment, and no motion to abate the attachment, but the defendant appeared and pleaded to the action. The objection comes too late here. There is no exception in the record, and no bill of exceptions taken, and neither facts proved nor evidence certified, and, in the absence of anything appearing to the contrary, the judgment must be here held to b.e right. We discover no ground of error in the record, and the judgment of the circut court is right and will be affirmed. Judgment affirmed.