Cater v. Hunter

3 Ala. 30

• Court: Supreme Court of Alabama
• Decided: June 15, 1841
• Status: Published

Opinion

GOLDTHWAITE, J.

1. The first and second assignments of error question the sufficiency of the declaration to charge the defendants.

The note is described according to its terms, and the declaration must be considered as insisting that the parties, by the words eighteen hundred rand twenty-nine, meant the year of our Lord one thousand eight hundred thirty-nine.

It is very evident, when the date and time of payment is compared together, that there must be a mistake in one of these particulars. The plaintiffs aver, in substance, that the mistake is in the time of payment, and, although the averment is not very precise -or definite, we must intend it to be sufficient after a default; indeed, it is difficult to say why the allegation of what was meant by the. note, would not be sufficient under any aspect in which this case could be'.presented. The question does not arise, how this averment was to be proved, if denied ; nor need we consider how far the note itself would be evidence of the intention of the makers.

2. The defendants by suffering a default admitted the cause of action as stated in the declaration, and it was competent for the clerk to proceed and compute the damages according to the averments of the declaration, as the amount due was certain and ascertained by the note. If, as the defendants suppose, the mistake is in the particular of the date, then the defendants so far from being injured by the assessment of the clerk, have reaped a considerable benefit in escaping the infliction of ten years interest.

In the case of McGehee vs. Childress, (2 S. & P. 50,) it was held by this court, that a judgment by default, admitted the allegation of the declaration, that the event had happened, on which the note described in that case, became due.

The same principle must govern this suit

Let the judgment be affirmed.