THE PRESIDENT, DIRECTORS AND COMPANY OF THE BANK OF THE COMMONWEALTH OF KENTUCKY, PLAINTIFFS IN ERROR vs. JOHN ASHLEY AND JOHN ELLA, Defendants.

The declaration purported to count upon sixty-eight bills of the bank of the commonwealth of Kentucky, and it appeared that one of the bills had been omitted to be described, so that the declaration made out a less sum than the writ claimed or the judgment gave. The defendants in error, plaintiffs below, moved for leave to cure the defect by entering a remittitur of the amount of the bill so omitted and damages pro tanto.

This Court thinks itself authorised to make a precedent in furtherance of justice, whereby a more convenient practice may be introduced, and to allow the party to enter his remittitur; but on payment of the costs of the writ, if error is prosecuted no further after such amendment made. [329]

ERROR to the circuit court of Kentucky.

This action was in all respects similar to that of the president, directors and company of the bank of the commonwealth of Kentucky vs. Wister, Prince and Wister, ante page 318, with the exception only, that it was founded on the notes of the bank payable to bearer, and usually denominated bank notes. The declaration contained counts in debt on simple contract, averring that the plaintiffs in the case were the holders of the notes, and that they became their property by delivery, and that payment had been demanded and had been refused.

The defendants entered the same plea as in the case referred to, which was adjudged against them, and a trial was had and a verdict of judgment rendered for the plaintiffs below for the whole debt, with damages for the detention from the commencement of the suit.

The bill of exceptions presented the same points to the Court as in the former case, and the only question which was argued before this Court was upon the effect of an omission to describe one of the sixty-eight bank notes in the declaration, the verdict and judgment having been given for a sum including the note, as if the same had been so described.

The counsel for the defendants in error, Mr Caswell, stated that a remittitur would be entered for the amount of

[Bank of Kentucky vs. Ashley & Ella.]

the note which had not been set out in the declaration, if this Court would permit the same. The debet and detinet in the declaration, stated correctly the amount of the plaintiffs' claim, and the verdict and judgment were in conformity therewith.

Mr Nicholas, for the plaintiffs in error, replied that this Court cannot amend the declaration, and that the plaintiffs here have a right to avail themselves of the error. Amendments may be made in the courts from which the case is brought, while the record is in the possession of those courts; but this writ of error has brought up the whole record, and the power to amend in the circuit court no longer exists.

Mr Justice JOHNSON delivered the opinion of the Court. This was an action of debt instituted upon the bank notes of the commonwealth bank, in which the defendants have recovered judgment for $6350 with interest.

The bank filed the same plea to the jurisdiction of the court below, as was filed in the case of Wister, Price and Wister. The decision therefore delivered in that case, renders it unnecessary to remark upon this part of the present cause. No other plea having been filed, judgment went by default for the sum claimed by the writ. But upon examining the declaration which purports to count severally upon sixty-eight bills, it appears that one of the sixty-eight has been omitted. Of consequence, the declaration makes out a less sum, and one debt less in number than the writ claims or the judgment gives. This is error: but the plaintiffs now move for leave to cure it, by entering a remittitur of the debt so omitted, and damages pro tanto. And this Court has taken time to consider the motion.

That the party would have had a right to remit in the court below cannot be questioned: it is every day's practice sustained by the gravest precedents. And the right extends, not only to the amount of damages, but to several causes of action, distinct debts, distinct acres of land, and distinct pleas. Cro. Jac. 146; Hob. 178; Raym. 395; 3 D. & E. 659. And the right is recognised as existing after error

[Bank of Kentucky vs. Ashley & Ella.]

brought, and while the cause is depending in the court above, and the court of error will suspend its judgment to give time for the defendant in error to amend in the court below. 3 D. & E. 349. 659. 749, &c.

But the difficulty consists in this, that the writ of error here does not bring up the original record, but only a transcript, as in the case of error to the house of lords. In error to the king's bench, that court will permit a remittitur, because it gets possession of the record (3 D. & E. 349.); but in error to the house of lords it is otherwise, and the entry must be made below for the reason assigned. 3 D. & E. 659.

After such amendment made in our circuit courts, the party would have to avail himself of it by suggesting diminution, and bringing up the amended record by certiorari.

This Court therefore thinks itself authorised to make a precedent in furtherance of justice, whereby a more convenient practice shall be introduced. And to allow the party to enter his remittitur here; but on payment of the costs, if the writ of error is prosecuted no farther after such amendment made.

Such seems to be the rule in the British courts, (Barnes, 17,) and we think it reasonable.

The defendants here will be permitted to enter the remittitur, and upon such entry the judgment will be affirmed, without costs in error.

This cause came on to be heard on a transcript of the record from the circuit court of the United States for the district of Kentucky, and was argued by counsel; on consideration whereof, it appearing to this Court that the judgment of the said circuit court is for a larger sum than that claimed and counted upon in the declaration in said cause in said court, the said defendants in error filed here in open court a remittitur in the following words, to wit:

"Supreme Court of the United States of January term, in the year of our lord eighteen hundred and twenty-nine. Be it remembered, that on the trial of this cause before the VOL. II.-2 R

[Bank of Kentucky rs. Ashley & Ella.]

Supreme Court of the United States on a writ of error to the circuit court of the United States for the district of Kentucky, on the fourteenth day of February in the year aforesaid, it appeared that one of the sixty-eight bills upon which the declaration purported to count severally, to wit, a bill for the amount of fifty dollars, had been omitted in said declaration; the declaration making out a less sum, and one debt less in number, than the writ claimed or the judgment gave. And hereupon the said John Ashley and John Ella, Junior, defendants in error, by Daniel J. Caswell their attorney and counsel in this Court, freely here in court remit to the said president and directors of the Bank of the Commonwealth of Kentucky, plaintiffs in error as aforesaid in this cause, as well the said debt of fifty dollars so omitted as aforesaid, the residue of the debt aforesaid, together with interest on the said fifty dollars at the rate of six per centum per annum from the twenty-second day of September in the year of our Lord eighteen hundred and twenty-five, as also damages pro tanto. As witness our hands this fourteenth day of February in the year of our lord eighteen hundred and twenty-nine. John Ashley and John Ella, Junior, by Daniel J. Caswell, their attorney and counsel in this Court."

Whereupon it is considered, ordered and adjudged by this Court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed without costs, deducting from the said judgment of the said circuit court, the amount so deducted as aforesaid.

THE PRESIDENT, DIRECTORS AND COMPANY OF THE BANK OF THE UNITED STATES, APPELLANTs vs. Daniel Weisiger, Appellee.

This Court has decided that a suit could be maintained in equity, by the holder of an indorsed note, against a remote indorser; and upon grounds perfectly familiar to courts exercising equity jurisdiction.

It has been decided in Kentucky, that a suit at law could not be maintained in that state by the indorsee, against a remote indorser. The conclusion then results from our own decisions, that he must be let into equity; for an indorsement is certainly no release to the previous indorsers; and the ultimate assignee alone is entitled to the benefit of their liability. And this we understand to be consistent with the received opinions and practice in Kentucky. [348] The law in Kentucky is settled, as it is in Virginia and in this Court; that upon Virginia contracts by indorsement of promissory notes, every reasonable effort must be made to recover of the drawer by suit, before the assignee can have recourse against the assignor or indorser.

It is upon the question, what constitutes such diligence, that all the difficulties arise in suits upon these contracts. And certainly this Court cannot be called upon to carry the obligations imposed upon assignees on this point, further than the state courts have already extended them. [348]

What will be considered a sufficient compliance with the requisitions of the laws of Kentucky, imposing diligence in the prosecution of a suit against the drawer of a note, by the indorsee, in order to charge a prior indorser.

The discharge of an insolvent under the statutes, is the most satisfactory evidence of insolvency. After such discharge, it is not required that process of execution shall be issued against the party, in order to conform to the injunction of diligence. [319]

The 2d, 3d and 4th sections of the act of January 6, 1800, entitled "an act for the relief of persons imprisoned for debts," make provision for the discharge of persons confined under execution; and the 5th section extends "the privileges and relief" of that act, to persons in confinement, against whom judgment is obtained, but no execution issued. Under the provisions in favour of persons charged in execution, on the day of arrest, a notice may be served upon the person at whose suit they are confined, and at the end of thirty days, they may be discharged. By the 5th section it is enacted," that any person im. prisoned upon process issuing from any court of the United States, except at the suit of the United States, in any civil action, against whom judgment has been or shall be recovered; shall be entitled to the privileges and relief provided by this act, after the expiration of thirty days from the time such judgment has been or shall be recovered; though the creditor should not within that time sue out his execution, and charge the debtor therewith." It has been argued that under this section, the defendant must remain in prison thirty days after judgment, before he can sue out his notice to the plaintiff; thus requiring him to remain sixty days in confinement in the cases which come under this section, whereas he remains but thirty days when confined under execution.

There can be no reason for this distinction; and in favour of liberty, and with a