Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-11-16

OFFICIAL.
Opinions OF the Supreme CGErt of the sta
of Tepnesseos at Jackson, april Teri
williams VS.. Bank of Tennessee,

OF AeAhcHeOo6 a. SAOAeOAS
williams Bank of Tennessee.
The declaration in this case is in debt upon a
promissory note against the maker and endorsers
The amount of the debt as claimed in the writ, is
$780, and the damages are laid, both in the writ
and declaration at $780, though the and endorse
ment with their protest and other averments neces-
sary to charge the parties are particularly stated
in the declaraton-yet the amount of the note is
omitted and the same is left in blank The defen-
dants being served with process, and required to
plead on oath. and being unable-as we take it
trUthfully to make any valid defence to the action,
failed to plead altogether whereupon the circuit
court gave judgment final against them by mil dice
which may, for the purpose of this investigation,
treat Judgment by default. Bingham Judg-
ments, 17lS. This Judgment the defendants, at the
same term Of the court moved TO set aside, and also
in arrest of Judgment; which motions being several
ly overruled, they have appealed to this court
They now ms ist that the blank in the declaration
is fatal error. We do not think So In Graves vs.
DOdson, Sth 1erger, l6l, which action of
Assumpsit where the writ stated the damages-but
they left blank in the leclaratiOn-it was held
the omission cured by verdict. In Newcomb
ct ais VS.. Ramer, ID Johnsons 42l. In te) which
trespass de bOnS dSpotdS omission to state the
value of the chattels was held to be matter of form
and cured by plea.
The same rule must obtain in actions of debt
The omission is at most, but an imperfect statement
of the facts which constitute the cause of action;
and the reason why at common law it was cured BY
the verdict is that it not to be presumed that
either the judge would direct the jury to give or
the jury would have given the verdict without
proof of the amount of the damages or debt
Bingham Judgments, 7S-2 Meigs' Digest S09
The action in this cause being debt for a sum Ger
tain-the Judgment by default at common law-was
final. Bingham on Judgments, 22-23 And in the
code, Sec. 1851 it is provided that if the defendant
fail to appear and defend at the time prescribed Ly
law, judgments by default may be taken against him.
And now-by Sec. 2952-in such case the judgment
20 pol Nlr.p al IL
ascertalned by simple calculation from the papers:
where the amount cannot be thus readily ascertain
ed. the damages Will be assessed by jury empan-
neiled at the same term for the purpose This then
was a case where the circuit court authorized
without the Intervention of jury to give this iudg
ment-inasmuch the amount of the plaintiffs
claim susceptible of ascertainment by simple
calculation from the papers-that is from the note
and protest. The circuit Judge must, of necessity
therefore, have had before him the Evidence uDOn
which the plaintiffs action was based in order to
ascertain the amount for which the judgment should
be given; and whatever may have been the distinc-
lions in the common law between judgments upon
verdict and by default in this respect it is difficult
ROU rih as to see why the intendments or pre-
sumptOns not to be made in favor of final iudg
ments by default, as upon the verdict of Jury In
reason and authority, we apprehend beth must stand
upon the same footing. Meigs' Digest, SO9 1t
would SEEM therefore, that independent of even re-
cent enactments, the objection has nothing in it,
But EOw this court is forbid to reverse any judg-
ment unless error of substance be shown to exist
and may rectfy and amend any defects and imper-
fections in matters Of form in order TO enable us to
afhrm the judgment and attain justice. Here we
cannot see that the Judgment is erroneous: and be
fore the plaintiffs in error can be allowed TO say it
Is, It was incumbent them, in the proper manner
to place before state of facts showing it to be
so, which they have failed to, and which we must
take it they could not do. If need be- we NAV re-
gard the imperfect statement in the declaration as
amended.
1t is next objected that the declaration shows that
the note presented for payment on the I4th of
September, when it should have been demanded on
the LIST of that month and that therefore the ell
dorsers are not chargeable.
This objection Is not well taken. The declaration
states that ,chen the note became due and payaJle &c
coidiag to its tenor ard effect tO-wit on the 18th OF
September, 1858. the plaintiff caused the same to be
presented, &c. The material and trayersable part
OF the ayeIpent Is, that lche the note became due and
payable, payment of it was demanded. Vail VS.
Lewis and Livingston, 4 Johns r. 450-456 Gleason
VS.. McVicker, Cowen, 42-45. We will now take
1t that appeared to the Circuit Judge in the note
and protest that the demand was made at the proper
time. Besides, we satisfied from the averments
in this declaration that the demand was made on
the first os September, and not upon the Nth and
that this latter date is clerical error and may be
considered as amended. Janson VS.. 0strander ct ais
l COwen, 670-676.
Finally, it is said the Judgment is for sIjOI So
debt and and SCI damages, when the writ claimed
the debt to be $500 only. This upon the authority
OF Edwards vs.. Green, Sneed go, is no reversible
error Moreover we think it probable from what
of this record that the s. IS are simply the
costs Of protest, notice &c, and were rightfully
allowed and IN the absence of bill of exceptions
disclosing the contrary, we will so presume Of
course their position with the debt instead of the
damages, where strictly they should have been at
this day amounts to nothing Affirm the Judgment
Test: NJ. d. WEIGH, Clerk. WRIGHT.