Smith v. Mullins

delivered the opikion of the codrt:

In May, 1856, Mullins, sued Smith upon two notes, setting up both in the same petition, but in distinct paragraphs. Smith appeared and answered, but subsequently withdrew his answer, and permitted judgment to go. The clerk, however, in making the order of judgment, failed to notice the smaller note, and only entered judgment for the amount of the larger one— reciting in the judgment that that was the amount claimed in the petition.

Afterwards, Mullins withdrew the note thus omitted without leave of court, and assigned it to Fennessy, who sued Smith thereon in…