Schooler v. Asherst

[216] Opinion of the Court. 1. THIS is a summons and petition. The petition was demurred to, and the demurrer was overruled by the court below. The only objection perceived to the petition, is the name of the defendant in error is written in the first part of the petition, “ Josiah,” and in the note recited in the petition, “ Josier.” It is contended, that the note recited does not appear to be the note of the person suing. The plaintiff in error, pleaded three pleas in bar, one of payment and two of usury. The defendant replied, traversing these pleas, and issues were joined, and the cause continued. At a subsequent term, the plaintiff in error, made default, and the court thereupon rendered judgment against him, without empanneling a jury to try the issued. As the plaintiff in error, held the affirmative of all the issues, and did not appear to substantiate them, it was perfectly regular to render judgment by default against him, without regarding his pleas. Miller vs. Miller, 4 Bibb, 341. ,2. As to the variation in the names stated in the note, and that by which the plaintiff was sued, it is so slight as to be hardly perceptible to the ear, and one is the vulgar mode of pronouncing the other, so that a [217] person, whose orthography was inaccurate, and who was illiterate, might easily write one for the other, and on a general demurrer it ought not to be fatal. 1 New York Term, Rep. 362. It is, therefore, considered by the court, that the judgment aforesaid, be affirmed, and that the defendant may proceed to have the benefit thereof, in the court below, and recover of the plaintiff ten per centum damages, on the amount thereof, which is ordered to be certified to said circuit court. It is further considered by the court, that the defendant recover of the plaintiff, his costs in this behalf expended.