
    CASE 54 — PETITION ORDINARY
    JANUARY 14.
    Anderson vs. Rogers & Clark.
    APPEAL PROM E LEMING CIRCUIT COURT.
    The plaintiffs alleged in the petition that the note sued on was executed and delivered to the plaintiffs, which was admitted by a failure to deny it in the answer. The court will not assume, on the face of the record, that the judgment was erroneous, because there was a variance between the name of one of the plaintiffs and that of the note. If this was an available defense, it ought to have been made in the answer.
    Cone, For Appellant.
    CITED—
    2 Metcalfe; Lytle vs. Lytle.
    
   JUDGE ROBERTSON

delivered the opinion op the court:

If the plaintiffs were, in fact, neither the nominal nor beneficial owners of the note sued on, the variance between the name of one of them and that of the note might have been made an available defense by answer. But the allegation in the petition, that the note was executed and delivered to the plaintiffs, being admitted by failing to deny it, the ostensible variance in one of the names was waived as a verbal mistake; and this court cannot assume that the judgment in favor of the plaintiffs is an error on the face of the record, and that, consequently, the plaintiffs were neither the legal nor beneficial obligees. On the contrary, the only judicial deduction is, that the note was given to them or to their use, and that they had a right to sue.

Wherefore, the record showing no available error, the judgment is affirmed.  