Bank of Kentucky v. Ashley - 27 U.S. 327 (1829)
U.S. Supreme Court
Bank of Kentucky v. Ashley, 27 U.S. 2 Pet. 327 327 (1829)
Bank of Kentucky v. Ashley
27 U.S. (2 Pet.) 327
The declaration purported to count upon sixty-eighty 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 of 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 authorized 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.
This action was in all respects similar to that of the president, directors and company of Bank of the Commonwealth of Kentucky v. Wister, Prince & Wister, ante, page 27 U. S. 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 sixth-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.