Owens v. Holliday , 23 Ky. 296 ( 1828 )

Judge Owsley

delivered the Opinion of (he Court.

Holliday sued Owens, in covenant, and declared on a note, dated the 3rd of Marc h, 1823, for one hundred dollars in commonwealth’s Bank paper, ]lavable the first of January thereafter.

Upon the declaration Holliday endorsed that he was willing to accept, in discharge of the judgment to be rendered, either notes on the bank of the commonwealth, or notes on the Bank of Kentucky, or any of its Branches.

Owens failed to appearfo the action, and an-enquiry of damages was awarded by the court. One hundred and eighteen dollars and fifty cents, damages, were assessed by the jury; and judgment was thereupon rendered by the court, “that Holliday recover of Owens the damages aforesaid, by the jurors in their verdict aforesaid assessed, and also his cost, by him about his suit in this behalf expended.”

No question of law appears to have been made on the trial in the circuit court, nor was there any application for a new trial.

The assignment of errors is predicated upon the supposition, that this is one of those cases which came within the act of the Legislature of this country, authorizing the recovery of bank paper specifically, and goes to question the correctness of the judgment, in not conforming to the provisions of that act.

There is evidently no conformity between the judgment required to he rendered by the act, and that which was entered in this case, either in the amount, or in the thing by which the judgment is to be discharged. This judgment is not for the precise nominal amount of the note sued on, nor is it entered to be discharged in notes of the bank; and by the directions of the act, the judgment, is not only required to he entered for the nominal amount of the note, but moreover, that amount is requir-' eel to be entered in the judgment, to be discharged in bank paper.

Endorsement of the declaration by the plaintiff, that the bank paper would ho received,does not empower the court to render judgment for the paperinkind, in a case not within the statute. This court cannot, ex officio, notice, that damages equal to principal and interest, on a covenant for bank paper, dated before the act allowing the recovery in kind, are excessive. An attempt, at a subsequent term, to amend a judgment rightly rendered for specie, so as to make it for bank paper, is nought.

Were the present case admitted to be one, therefore, that comes within the provisions of the act, we should have no hesitation in saying, that the judgment could not be sustained. But is not understood to be such a case. The note sued on bears date prior to the passage of the act, and the act has heretofore been construed not to apply to contracts made before its passage.

Uncontrolled by the act, the judgment was correctly rendered without regard to bank paper. It could not, in fact, have been regularly entered to be discharged in bank paper. It required the exertion of Legislative power to authorize judgment to be rendered for bank paper in any case, and it is only in cases to which the act of the Legislature applies, that judgment can now be rendered in that commodity.

The damages, it is true, are greater than thenominal amount of the note sued on, and as men, we may know that the paper of the bank has never heen equal in value to gold or silver. B ut there appears to have been no objections to the assessment of damages made by the. jury in the circuit court, and after being acquiesced in there by the parties, it is not for us, ex officio, to take notice of the value of bank paper, and overturn the verdict and judgment because the jury has placed too high an estimate on the paper.

But there appears, from a return made by the clerk of the court below, to a certiorari which went from this court, that at a term subsequent to rendering the original judgment, and since the cause has been in this court, an amendment has been made to the judgment by that court, so as to make it dis-chargeable in bank paper; and it becomes necessary to decide, whether any, and if any, what effect that amendment is to have upon the original jndgment?

We have said that the judgment has been amended, but we have so said because it is so denominated by the court below, and not because it can, with strict propriety, be said tobe an amendment. To amend, is to correct that which is erroneous, and needs correction; but to make that which is already correct erroneous, cannot with any propriety be said to be an amendment; and we Have seen that the judgment, as originally rendered, was correct, and that the attempt to amend it was only calculated to make the judgment illegal and invalid. Such an effort is not to be indulged, and though allowed in the court below, cannot prevail in this court, so as to produce any effect on the judgment, as originally rendered.

Hanson for plaintiff;- French for defendant.

The judgment is, therefore, affirmed with cost and damages.