Malone & Co. v. Hathaway
Supreme Court of Alabama
Ose Scales made a promissory note for $2S8, dated the -’•Oth of August, 1826, and payable to Malone & Co. one day after date, in current money.
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Ose Scales made a promissory note for $2S8, dated the -’•Oth of August, 1826, and payable to Malone & Co. one day after date, in current money. Majone & Co- on the of September, indorsed the note to Hathaway; and in October 1826, Hathaway brought an action of assump-s>t ‘in Madison Circuit Court, against Malone & Co. as in- ■ The declaration was in the usual form; no plea was filed by the defendants, and at May term 1827, a judgment by nil dioit was rendered for' the plaintiff, in form of a judgment of debt, for $2SS debt, and @11 damages. It is assigned for error by Malone & Co., the…
1Opinion of the Court
By LJPSCOMB, Chibs' Justice.
The only point insisted on by the plaintiffs in error is, that the judgment by nil dicit should not have been final, but that a jury should have been empannellod to assess damages. It is said that this case does'not come within the provisions of the act of assembly makingjudgment by default, non sum informa-tus, or nihil dicit final, when the action is founded on any writing ascertaining the sum due; that the writing here is not the foundation of the action, but only an inducement to it. If the suit had been between the maker and the payee, there would have been…
2Cited by2 opinions
- McElhaney v. GillelandSupreme Court of Alabama · 1857
- Spence v. ThompsonSupreme Court of Alabama · 1847