Jordan v. Bell , 8 Port. 53 ( 1838 )

GOLDTHWAITE, J.

The only assignments to which our attention has been called, arc those which point out the supposed error in the return day of the writ, and the error in the amount of the judgment.

It may he questioned if the day is not well enough stated in the writ, as it is somewhat a forced presumption to conclude tire relative next docs not refer to the “ second Monday,” as well as to “June;” hut, if this is ad-xnitted to be an error, in cornos within the decision made in Nabors vs. Nabors, (2 Porters R. 162.) There the writ was made returnable in Marc:', when it should have been in April; and the defendant attempted to plead in abatement at the second term after its return. The plea was rejected as coming too late, and the defendant refusing to plead to the action, judgment was rendered against him. On a writ of error to this court, it was held, that the attempt to plead the matter in abatement, was not an appearance, and was no waiver of the defect. But the court also decided, that such a defect in the writ is not the subject of error — Unit it must be taken advantage of by plea in abatement, and can be in no other way.

The law having prescribed the time when the several courts in the State shall be held, it is a matter as much within the knowledge of the defendant as of the plaintiff, and he is also informed from the same source, that writs can only be made returnable to the next ensuing court, if issued more than five days previous to the time of its session.

If a judgment is rendered at a term to which the writ cannot be legally returned, such judgment can be corrected on error, if the defect or irregularity has not been waived: but in all cases where the writ is returnable to a wrong term, or where the day is mistaken, they come within the principle, and must be governed by the de cisión of Nabors vs. Nabors.

The liability of the drawer or endorser of an inland bill of exchange, becomes fixed on presentment for acceptance or payment, and on tire notice given of the failure — but damages do not follow as a consequence of such demand and notice. They are given alone by statute, on the protest of the bill — (Dig. 329, s. 7.)

There is no averment in the declaration, that the bill was protested; consequently, no damages could be given; or rather the clerk, in computing the amount for which to enter the judgment, was authorised to allow only the face of the bill, and interest on the same. But this .is a mere clerical mistake, and could have been corrected, on the application of either party to the court below.

By statute, (Dig. 266, s. 48, 49,) this court is directed not to reverse any judgment for such an error, unless application has been made to the court below, and refused —but to order the judgment to be remanded and corrected, at the costs of the plaintiff in errrr.

We direct that the judgment of the County court be corrected, and here rendered for the proper amount, at the costs of the plaintiff in this court.