Lofland v. Cade — 8 Del. 222

Majority

p. 222

Samuel M. Lofland v. John H. Cade.

Headnote

In an action on the case for not satisfying a judgment for §1500, entered by confession on a judgment bond and warrant of attorney in the Superior Court, with the sum of $*789.45 endorsed as the real debt thereof

p. 223

in the margin of it upon the record, if the real debt is alleged in the declaration to be the amount for which the judgment was recovered, instead of the $1500, the variance will be fatal.

Action on the case for not satisfying a judgment in the Superior Court for $1500, entered by confession on a judgment bond and warrant of attorney from Lolland tb Cade, to April Term, 1860. The real debt endorsed on the margin of it was $789.45, with interest from May 22nd, 1860.

Wright, for the plaintiff,

after proving anterior payments upon it, and a tender of the balance of principal, interest and costs, by the plaintiff to the defendant in United States legal tender notes, commonly denominated “green backs,” which the latter refused to accept, rested his case.

Layton, for the defendant,

submitted a motion for a non-suit. According to the declaration and the averment contained in it, the action was for not satisfying a judgment recovered in this court by the defendant against the plaintiff and since paid by the latter, for the real debt of $789.45 with" interest thereon, from the 22nd, of May, 1860, but the judgment offered in evidence to sustain the allegation was recovered for the sum of $1500, as appeared by the record, and the variance was fatal.

granted the motion, and a judgment of non-suit was entered.