
    *Miller v. M’Luer.
    October, 1820.
    Demurrer! — Assigning Special Causes — Effect.—Assigning special causes i or demurrer does not make a demurrer special, which is in its nature general.
    Same' — No Joinder — Effect in Appellate Court.. -Not adding the joinder in demurrer, is not an available error in an appellate court, after argument, and a decision on the demurrer in the court below.
    Appeal Bonds -Actions on — Judicial Errors-- Practice of Court of Appeals. -In actions on appeal bonds, this court will not consider either judicial errors, or clerical misprisions, in the court below, occurring in the original suit, and in which there has been an acquiescence, by the parties not appealing to correct them.
    Miller brought debt against Beverley, M’Buer, and Hiori, in the Superior court of law for Rockbridge county, on a super-sedeas bond, given by them jointly, to Miller, for the successful prosecution of the supersedeas to a judgment, given in the county court of Rockbridge &c. with the usual condition annexed.
    The suit abated as to Beverley and Hiort, on a return of their being no inhabitants.
    The breach assigned was, that the Superior court was of opinion there was no error in the judgment of the county court; and on the 15th April 1812 “adjudged” that it should be affirmed: and that Miller should recover of Beverley his damages, at 10 per cent, and his costs. The clerk by mistake omitted to record the judgment as to the 10 per cent, damages; and at a subsequent term the court permitted the entry to be amended.
    At the September term 1813, the defendant pleaded that he had not broken the covenant : in 1816 the defendant had leave to withdraw this plea; he then craved oyer of the appeal bond, and of the record of the court in which the judgment was examined, pleaded no such record, and demurred 1,o the declaration. There were five ^causes of demurrer specifically assigned : one was, that the Superior court in entering judgment on the super-sedeas, used the words “therefore it is adjudged,” instead of “therefore it is considered.” There was no joinder in demurrer. The court nevertheless proceeded to give judgment on the demurrer, against the plaintiff; who appealed.
    
    
      
      Demurrer. — See monographic note on “Demurrers” appended to Com. v. Jackson, 2 Va. Cas. 501.
    
    
      
      Same — No Joinder — Effect in Appellate Court.— The joinder in demurrer not being added is not an available error in an appellate court when the demurrer has been argued and decided on its merits below without objection being made. Hart v. B. & O. R. Co., 6 W. Va. 346; Crump’s Case, 98 Va. 834, 23 S. E. Rep. 760, both citing the principal case as authority.
    
    
      
      Appeal Bonds. — On this subject, see monographic note on “Appeal and Error” appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263.
    
    
      
      The Reporter not being present at the argument cannot unfortunately give even a sketch of the course it took. — Edition 1821.
    
   By the COURT.

This case was decided in the Superior court, on a demurrer to the declaration, which was sustained. Although causes of demurrer were assigned, yet it was, in fact, and in its nature, a general demurrer. The declaration, which was on an appeal bond, set out the condition, the judgment of affirmance, with ten per cent, damages; and makes profert of the bond. It goes on further to state, that though the judgment of affirmance gave ten per cent, damages, according to law, j'et the clerk, omitted, by mistake, to enter up the judgment accordingly: and that this omission was afterwards corrected by the court. Oyer was craved and granted of this record; and of course it became a part of the declaration : and the question on the demurrer was, whether the plaintiff could sustain his action, on such amended judgment?

Considering it a general demurrer, therefore, it was properly received. Another objection, however, was taken, that there was no joinder in demurrer. This objection comes too late. The demurrer was argued by both parties, and the reason of amending this defect is at least as strong, if not stronger, than in the case of the want of a similiter to a plea. By amending in that case it is said, “the court only make that right, which the defendant himself understood to be so, by going down to trial.”

*As to the merits. Objections are taken as to want of technical form in the original judgment of affirmance: the word, “adjudged,” instead of the word, “considered” by the court, is objected to. So too as to the form of the amending judgment. That judgment is also objected to as a nullity, because the error complained of was not a clerical error, amendable on motion, as the judge decided; but an error which could only be corrected in an appellate court. I am not prepared to say whether either of these objections would have availed Beverley, who was the surety to those proceedings, and the principal in the appeal bond in this case, had those proceedings been brought before us for correction ; but I have no hesitation in saying, that we cannot reverse or nullify them in this suit.

Until reversed by proper authority, the Superior court of law, and this court when revising its judgment, must consider those proceedings as regular, and as obligatory on the parties, as if they had been affirmed in this court. Had they been so affirmed, the amending judgment would have relation to, and be in law considered as part of the original judgment of affirmance; and the plaintiff consequently entitled to maintain his action.

Ror these reasons I think the Superior court of law erred, in sustaining the demurrer in this case, which ought to have been overruled. That judgment must, therefore be reversed with costs; the demurrer overruled, and the cause remanded for further proceedings to be had. 
      
      CABELL absent.
     