Henry v. Gamble , 1 Minor 15 ( 1820 )

The Chief Justice

delivered the opinion of the Court,

By the note the appellant undertook to pay a certain sum °f money on a certain day, or to pay that value in merchandize on demand. It was in the election of the appellees to give effect to the latter clause of the contract, to demand or not demand payment in merchandize. Until such demand, the appellant could not avail himself of this part of the contract. The action for the money was properly brought, and the breach sufficiently assigned.

By the indorsement on the writ the note appears to have been made at St. Stephens. The Court is bound to know that this place is in Washington County, more especially as it is a place recognized by our Statutes as in that County. But this is a transitory action, and the cause of action might have been proved to have arisen in any other County.

As to the last assignment, — It may be doubted whether at common Law it was necessary to lay damages at all in a declaration in debt: (2 Wash. 212.) But our Statute of Jeofails goes farther, and is less qualified, than perhaps any other : by St. 21 Jac. ch. 13 ; “ No judgment after Verdict “ shall be reversed for any variance in form only between “ the original and declaration.” By the Virginia Statute :— “ No judgment after Verdict shall be reversed for any vari- “ anee in the writ from the declaration, nor for any mistake in “ the Christian name, &c. &c., the same being right in any “ part of the Record or proceedings,” omiting the words' “ in “form only.” The Virginia Statute has been held even in an action sounding in damages, to cure after verdict the omission of damages in the declaration. Our Statute (Laws Ala. p. 454, sect. 36) provides that “ no summons, writ, de- “ claration, return process, or other proceedings, shall be “ abated, arrested, quashed, or reversed, for any mistake in the “ Christian name or surname of either party, sum of money, “ &c. in the declaration or pleadings, the same being right in “ any part of the Record or proceedings.” Our Statute omits the words after verdict, which are used in the St. Jas. 1, and in the Statute of Virginia. Under the operation of the two latter, a judgment after verdict could not be reversed, for the matter here assigned as Error. By our Statute it seems that lio judgment shall be reversed, at any timé,' or under any circumstances, whether after verdict or not, for any mistake in the name, sum, &c. they being right in any part of the Record and proceedings.

Crawford and Hitchcock for appellant, Pickins for ap-pellee. '

The writ is clearly part of the Record for the purpose of amendment.- The amendment would have been properly allowable in the Court below, and this Court is required to consider it as having been made. Let the judgment be affirmed.-