Hartman v. Welz , 1 B. Mon. 242 ( 1841 )

Chief Justice Robertson

delivered the Opinion of the Court.

This is a petition and summons, by one native German against another, on a promissory “note for the direct payment of money,” written in their vernacular tongue.

The petition contains a literal transcript of the note, as written in German, and. subjoins a translation of it in

Demurrer and judgment of the Court. Petition andsum* mons will lie on a note drawn in a foreign language, giving the substaneein english, and is not vitiatedby giving a fac simile of the note with its translation in english. Averment may he made in petition, either descriptive of the person or of the import and effect of the note sued on. D. W. Wilson for plaintiff: Grigsby and Graves for defendant.

English, under the following recital: “Which, translated into English, is as follows.”

The Circuit Court having overruled a demurrer to the petition, and rendered judgment on the note, as therein translated, the only question presented for revision is, whether a petition is an appropriate form of action on such a note, as thus described.

If, as is not denied, the translation in the petition be correct, the note is for the direct payment of money, as prescribed by the statute authorizing suits by petition and summons, and, in every such case, a petition may be maintained, unless the right to sue suspends on some extrinsic fact, the averment of which cannot be made without departing essentially from the form given by the statute.

It is well settled that mere matter of description or identification, either as to the proper parties or the legal import and effect of the note sued on, may be appropriately made in a petition, and consequently, had the petition, omitting the German copy, only copied the note in English, characterizing it truly, as one written in a foreign language, in which we are not permitted to plead, there certainly could have been no valid objection to it. And surely the superfluous fac simile oí the note as written, copied doubtless for the purpose of avoiding any question as to variance, cannot defeat the action which would have been maintainable without it. The German copy, though unnecessary, cannot vitiate.

And therefore, although the petition might have been less copious and more formal, had it merely stated that the plaintiff held “a note on the defendant,” (written in German,) “in substance as follows,” (in English,) yet the petition, as drawn in this case, is equally good in legal effect.

It is, therefore, our opinion that the judgment of the Circuit Court be affirmed.