Smith v. Wiley
Supreme Court of Alabama
ERROR, to the Circuit Court of Perry, Tuts ,was an action of debt instituted by Wiley against the plaintiffs in error. The endorsement on the writ states that the ¿action was founded on a bond executed by the defendants to the plaintiff, for the sum of $40,000, conditioned, that if the said Joseph W. Smith as guardian of John S. Smith, had received of the plaintiff, as administrator of Robert Smith, deceased, more than the distributive share of said John S. Smith, then'they…
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ERROR, to the Circuit Court of Perry, Tuts ,was an action of debt instituted by Wiley against the plaintiffs in error. The endorsement on the writ states that the ¿action was founded on a bond executed by the defendants to the plaintiff, for the sum of $40,000, conditioned, that if the said Joseph W. Smith as guardian of John S. Smith, had received of the plaintiff, as administrator of Robert Smith, deceased, more than the distributive share of said John S. Smith, then'they Would refund the overplus; and that the object of the suit was •to recover an overplus so paid. The suit was brought in…
1Opinion of the CourtChilton, J.
Tbe only question for our consideration is, whether there was such a want of conformity between the writ and declaration, as to justify the court in rejecting the latter. It was said in Sexton v. Roane, 1 Ala. 830, that the design of the Legislature, in requiring the cause of action to be endorsed upon the writ, was to apprise the defendant of the matter in controversy, so that he might not be taken on surprise, &c.— We think there could have been no surprise -in this case. The suit by the plaintiff below was brought in his individual capacity, and the writ and declaration agree as to the…
2Cases cited1 opinion
- Tenison v. MartinSupreme Court of Alabama · 1848
3Cited by3 opinions
- Perkerson v. SnodgrassSupreme Court of Alabama · 1887
- Sharman v. JacksonSupreme Court of Alabama · 1872
- Stoddard & Co. v. Davis & Co.Supreme Court of Alabama · 1873