The President, Directors and Company of the Bank of the Commonwealth of Kentucky, Plaintiffs In Error v. John Ashley and John Ella, Defendants

• Decision Date: 01 January 1829
• Parties: THE PRESIDENT, DIRECTORS AND COMPANY OF THE BANK OF THE COMMONWEALTH OF KENTUCKY, PLAINTIFFS IN ERROR v. JOHN ASHLEY AND JOHN ELLA, DEFENDANTS
• Court: U.S. Supreme Court

27 U.S. 327

2 Pet. 327

7 L.Ed. 440

THE PRESIDENT, DIRECTORS AND COMPANY OF THE BANK OF

THE COMMONWEALTH OF KENTUCKY, PLAINTIFFS IN ERROR

v. JOHN ASHLEY AND JOHN ELLA, DEFENDANTS.

January Term, 1829

ERROR to the circuit court of Kentucky.

This action was in all respects similar to that of the president, directors and company of the bank of the commonwealth of Kentucky vs. Wister, Prince and Wister, ante page 318, with the exception only, that it was founded on the notes of the bank payable to bearer, and usually denominated bank notes. The declaration contained counts in debt on simple contract, averring that the plaintiffs in the case were the holders of the notes, and that they became their property by delivery, and that payment had been demanded and had been refused.

The defendants entered the same plea as in the case referred to, which was adjudged against them, and a trial was had and a verdict of judgment rendered for the plaintiffs below for the whole debt, with damages for the detention from the commencement of the suit.

The bill of exceptions presented the same points to the Court as in the former case, and the only question which was argued before this Court was upon the effect of an omission to describe one of the sixth-eight bank notes in the declaration, the verdict and judgment having been given for a sum including the note, as if the same had been so described.

The counsel for the defendants in error, Mr Caswell, stated that a remittitur would be entered for the amount of the note which had not been set out in the declaration, if this Court would permit the same. The debet and detinet in the declaration, stated correctly the amount of the plaintiffs' claim, and the verdict and judgment were in conformity therewith.

Mr Nicholas, for the plaintiffs in error, replied that this Court cannot amend the declaration, and that the plaintiffs here have a right to avail themselves of the error. Amendments may be made in the courts from which the case is brought, while the record is in the possession of those courts; but this writ of error has brought up the whole record, and the power to amend in the circuit court no longer exists.

Mr Justice JOHNSON delivered the opinion of the Court.

This was an action of debt instituted upon the bank notes of the commonwealth bank, in which the defendants have recovered judgment for $6350 with interest.

The bank filed the same plea to the jurisdiction of the court below, as was filed in the case of Wister, Price and Wister. The decision therefore delivered in that case, renders it unnecessary to remark upon this part of the present cause. No other plea having been filed, judgment went by default for the sum claimed by the writ. But upon examining the declaration which purports to count severally upon sixty-eight bills, it appears that one of the sixty-eight has been omitted. Of consequence, the declaration makes out a less sum, and one debt less in number than the writ claims or the judgment gives. This is error: but the plaintiffs now move for leave to cure it, by entering a remittitur of the debt so omitted, and damages pro tanto. And this Court has taken time to consider the motion.

That the party would have had a right to remit in the court below cannot be questioned: it is every day's practice sustained by the gravest precedents. And the right extends, not only to the amount of damages, but to several causes of action, distinct debts, distinct acres of land, and distinct pleas. Cro. Jac. ...