The declaration purported to count upon sixty-eighty bills of
the Bank of the Commonwealth of Kentucky, and it appeared that one
of the bills had been omitted to be described, so that the
declaration made out of a less sum than the writ claimed or the
judgment gave. The defendants in error, plaintiffs below, moved for
leave to cure the defect by entering a remittitur of the amount of
the bill so omitted and damages
pro tanto.
This Court thinks itself authorized to make a precedent in
furtherance of justice whereby a more convenient practice may be
introduced, and to allow the party to enter his remittitur, but on
payment of the costs of the writ if error is prosecuted no further
after such amendment made.
This action was in all respects similar to that of the
president, directors and company of
Bank of the Commonwealth of
Kentucky v. Wister, Prince & Wister, ante, page
27 U. S. 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.
Page 27 U. S. 328
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 $6,350 with interest.
The bank filed the same plea to the jurisdiction of the court
below, as was filed in the case of
Wister, Price &
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. 146; Hob. 178;
Raym. 395; 3 D. & E. 659. And the right is recognized as
existing after error
Page 27 U. S. 329
brought, and while the cause is depending in the court above,
and the court of error will suspend its judgment to give time for
the defendant in error to amend in the court below. 3 D. & E.
349, 659, 749, &c.
But the difficulty consists in this, that the writ of error here
does not bring up the original record, but only a transcript, as in
the case of error to the House of Lords. In error to the King's
Bench, that court will permit a remittitur, because it gets
possession of the record, 3 D. & E. 349, but in error to the
House of Lords it is otherwise, and the entry must be made below
for the reason assigned. 3 D. & E. 659.
After such amendment made in our circuit courts, the party would
have to avail himself of it by suggesting diminution and bringing
up the amended record by certiorari.
This Court therefore thinks itself authorized to make a
precedent in furtherance of justice whereby a more convenient
practice shall be introduced. And to allow the party to enter his
remittitur here, but on payment of the costs if the writ of error
is prosecuted no further after such amendment made.
Such seems to be the rule in the British courts, Barnes 17, and
we think it reasonable.
The defendants here will be permitted to enter the remittitur,
and upon such entry the judgment will be
Affirmed without costs in error.
This cause came on to be heard on a transcript of the record
from the Circuit Court of the United States for the District of
Kentucky and was argued by counsel, on consideration whereof it
appearing to this Court that the judgment of the said circuit court
is for a larger sum than that claimed and counted upon in the
declaration in said cause in said court, the said defendants in
error filed here in open court a remittitur in the following words,
to-wit:
"Supreme Court of the United States of January term, in the year
of our Lord 1829. Be it remembered that on the trial of this cause
before the
Page 27 U. S. 330
Supreme Court of the United States on a writ of error to the
Circuit Court of the United States for the District of Kentucky, on
the fourteenth day of February in the year aforesaid, it appeared
that one of the sixty-eight bills upon which the declaration
purported to count severally, to-wit, a bill for the amount of $50,
had been omitted in said declaration, the declaration making out a
less sum, and one debt less in number, than the writ claimed or the
judgment gave. And hereupon the said John Ashley and John Ella,
Junior, defendants in error, by Daniel J. Caswell their attorney
and counsel in this Court, freely here in court remit to the said
president and directors of the Bank of the Commonwealth of
Kentucky, plaintiffs in error as aforesaid in this cause, as well
the said debt of $50 so omitted as aforesaid, the residue of the
debt aforesaid, together with interest on the said $50 at the rate
of six percentum per annum from 22 September, 1825, as also damages
pro tanto. As witness our hands this 14 February, 1829.
John Ashley and John Ella, Junior, by Daniel J. Caswell, their
attorney and counsel in this Court."
Whereupon it is considered, ordered and adjudged by this Court,
that the judgment of the said circuit court in this cause be, and
the same is hereby affirmed without costs, deducting from the said
judgment of the said circuit court, the amount so deducted as
aforesaid.
