BLOUNT vs. McNEILL

BLOUNT vs. McNEILL. [ACTION ON PROMISSORY NOTES — JUDGMENT BY NIL DICIT.] 1. Premature commencement of action. — Where the judgment is by nil ditit, and the complaint shows a good cause of action, the objection cannot be raised on error, for the first time, that one of the notes on which the suit is founded was not due when the action Was commenced. — Code, § 2405. Appeal from the City Court of Mobile. Tried before the Hon. Alex. McKinstry. This action was commenced on the 5th February, 1855, and was founded on the defendant’s three promissory notes, one of which was not due until the 1st March, 1855. The judgment was by nil dicit, for the amount of the notes and interest, and was rendered on the 14th April, 1855. It is now assigned as error, that one of the notes was not due when the suit was commenced. E. S. Dargan, for the appellant. K. B. Sewall, contra. [MAJORITY — WALKER, J.] WALKER, J. The case of Randolph t. Cook & Ellis, 2 Porter, 286, is distinguishable from this. In that case, the entire cause of action was immature at the commencement of the suit. In this case, only one of the three notes sued on was not due when the suit was commenced, and there is no other objection to the declaration. It is unnecessary, therefore, in the decision of this case, either to maintain or to overrule that decision. The declaration here contains a good cause of action; and if the defendant had resisted the judgment of the court below, either by plea or demurrer,' the defense would have been partial, going only to a part of the matter embraced in the declaration. Such a defense is not available in this court, when no objection was in any way made in the court below. — Code, § 2405. The judgment of the court below is affirmed.