Opinion
Spring Sessions, 1866.
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 Lofland to Cade, to April Term, 1860. The real debt endorsed on the margin of it was $789.45, with interest from May 2nd, 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 nonsuit. 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.
The Court granted the motion, and a judgment of nonsuit was entered.