Payne v. Mattox

4 Ky. 164, 1 Bibb 164, 1808 Ky. LEXIS 173

• Court: Court of Appeals of Kentucky
• Decided: October 24, 1808
• Status: Published

Opinion

OPINION of the court, by

Judge Bibb.

-Mattox, as assignee, recovered judgment against Payne, upon a specialty acknowledging the debt, but without specifying any day for payment.

The first assignment of jrror (by Payne, who has prosecuted this writ,) objects to the declaration, because it; has not stated “ at what time the writing declared on became due or payable, without which it cannot judicially appear from the record that the plaintiff had a good cause of action at the time of the institution of this suit.”

The declaration sets forth the note as made before -action brought, and declares on it as acknowledging the debt without any postponement of the time of payment j from which it must be known and judicially noticed by the court, that the debt was payable and demandable immediately, and without delay.

The other assignments relate to the execution, the propriety or impropriety of which have not been brought before the court below for adjudication, and therefore cannot be regarded by the appellate court, according to the principles decided in Smith vs. Carr,

(a) and many such cases since.- — —Judgment affirmed.

Hardin p. 307 to 310,