
    WILSON v. THOMPSON.
    Error — pleading—surplusage—substantial finding.
    In a suit by an assignee of a note, the plea was attached under the attachment law, as the credit of the payee of the note, the obligor summoned in as garnishee, and the money collected of him by execution — replication, that the note was negotiated before the attachment, concluding with a verification, and to the country — rejoinder that the plaintiff received the note in fraud of the attaching creditor, concluding with a verification — no rebutter; on trial it was found that the defendant did assume, &c., and that the debt was not attached, on which judgment was given for the plaintiff — -held on error that, the replication denied the fact of the plea, and properly concluded to the country, the verification as well as the rejoinder are surplusage — held also that the finding was upon the substantial issue, was acquiesced in, and good after judgment.
    Error to the Common Pleas, Thompson declared in the Common Pleas, on a note payable to one Strand or bearer, for fifty dollars, *in two years, with interest, assigned to him. Wilson pleaded [333 as to all but twenty-one dollars seventy-seven cents non assumpsit; and as to the other twenty-eight dollars twenty-three cents, that before the note was transferred to the plaintiff, that sum was attached as the credit of Strand, an absconding debtor, by writ from a justice, on which proceeding Wilson was summoned in as garnishee; and the money collected of him on execution. Replication, that the twenty-eight dollars twenty-three cents was not attached before the note was negotiated, as to which he put himself on the country, and then concluded with a verification. Rejoinder, that the plaintiff took the note in fraud of the claim of the attaching creditor, and concludes with a verification. To which there is no rebutter. On trial, it was found that the defendant did assume, &c., as in the declaration, and that the twenty-eight dollars twenty-three cents was-not attached, on which judgment was given for the plaintiff,
    
      Hopkins for the plaintiff in error.
    
      Williams and Boalt contra.
   WOOD, J.

The replication denies the fact of the plea, and properly concludes to the country. The verification subjoined is surplus-age and a nullity, and so is the rejoinder. The finding, therefore, is upon the substantial issue; it was acquiesced in at the time without objection, and we incline to hold it good enough after judgment. The judgment is affirmed, with costs.  