
    Henry Swearingen, Joseph B. McGrew, and others v. The Bank of Mount Pleasant
    A judgment by default entered upon a declaration containing some bad and some good counts, will not be reversed for error.
    Johnston v. Mullin, 12 Ohio, 10, is affirmed.
    This is a writ of error to the court of common pleas of Jefferson county.
    The action below was assumpsit. The declaration contained two counts. In the first count, the plaintiffs in error were declared against as indorsers of a promissory note for $3,000, made by one Daniel Swearingen, payable at the Bank of Pittsburg, in Pittsburg bank paper, or eastern funds. The second count was in the common form for money lent. At the August term, 1842, judgment was entered by default for $3,135. To reverse which judgment, this writ is now brought.
    *Mason and Moody, for plaintiff in error:
    The judgment must be reversed if either count in the declaration is substantially defective, damages being assessed generally upon the whole declaration, and the judgment being by default. This has always been the practice at common law, even after verdict, and has often been recognized in this state, by this court, previous to the enactment of the statute of 1835, amendatory of the practice act. Swan’s Stat. 688; Nelson v. Ford, 5 Ohio, 473; Maxfield v. Johnson, 2 Ohio, 204.
    The recent case of Johnson v. Mullin, 12 Ohio, 10, construes section 6 of the act of 1835, and, were this a judgment after verdict, might perhaps be regarded as conclusive upon this case, were either count in the declaration good, unless it appeared upon the record that the evidence upon which damages were assessed, was not applicable to the good count.
    The judgment in this case, however, is a judgment by default. Has section 6 of the practice act of 1835 anything to do with it? and was that act intended by the legislature to extend the judgments by default? The language of the act is, “and where sufficient appears to sustain the verdict, the judgment shall not be re-,, versed on account of such defective counts.”
    
      The whole section appears clearly to refer only to cases whore a verdict has been returned, and damages assessed by a jury. If the legislature had intondod that this law should bo extended to include judgments by default, why should they restrict it in its language to those which are taken after verdict ? The act is amendatory of the common law, and should not bo construed to apply to any cases except those which appear to bo clearly within its language and provisions.
    The language made use of in the English statutes of jeofails, is similar to that made use of in our act of 1835; they provide that “judgment, after verdict, shall not be stayed or reversed by reason of any mispleading.” 1 Chitty’s Pl. *682; Tidd’s Prac., 9 ed. 923. They were invariably construed not to extend the judgments by default, until by the act for the amendment of the law, passed in 4 Anne, ch. 16, sec. 2 (see Chitty’s Pl., appendix, 701), the statutes of jeofails were, by express enactment, extended to judgments upon confession, nihil dicit, or non sum informatust and the construction, placed upon the. same language, will aid in the construction of this statute.
    If then remains for us to inquire whether, admitting the count for money lent to be good, the first count in this declaration is substantially defective.
    Any objection which would have been fatal upon general demurrer to this count will be noticed upon error, because the judgment is by default, and there can bo no intendment after verdict to save it. 1 Chitty’s Pl. 674, 683, 684; 1 Saund. 288, n. 1; 13 East, 407; Gould’s Pl. 505.
    The plaintiff was a banking corporation, and it is evident that the attempt has been made to adopt the peculiar remedy given to banks by section 9 of the act of January 8, 1824. Swan’s Stat. 149. This act authorizes banks to sue drawers and indorsers jointly, otherwise they may pursue the common-law remedy, suo them severally and take their judgment without costs. The act has been often enough construed to warrant this conclusion. Bank of Chillicothe v. Yoe et al., 4 Ohio, 125; Henry Lewis et al. v. Bank of Kentucky, 12 Ohio, 132. The first count is clearly erroneous, therefore, because, if intended to bo a count under the statute, no such count is authorized by it, but only the count for money lent; or, if the statute should be construed to authorize such special count,' there is still error, because Daniel Swoaringon, the maker of tho note, is not joined in the action, and tho plaintiff lias sued tho four indorsors jointly, upon a noto which the statutes, for purposes of suit and judgmont, makes tho joint obligation of five, or of drawers and indorsers; and it is error to take judgment against a part of several joint obligors. Wright’s Ohio, 118; Ib. 94. Nor is this a question of variance, bceauso it appears, upon tho face of the pleadings, that tho first count *is upon a promissory note drawn by Daniel Swearingen and indorsed by tho defendants. It is not thought necessary to make an argument to show that, at common law, it is error to declare jointly against four indorsers, whose indorsement is averred to bo several. So that the first count is neither good at common law nor authorized by statute.
    Again, the breach in tho first count Is not assigned in words eo-extensive with the import and effect of the contract declared upon.
    Tho contract described it, “ to pay in Pittsburg bank paper, or eastern funds.” Tho breach is a refusal to pay money. Chit. Pl. 332, and n. c; 2 Saund. 181, a; Com. Dig. Pl., ch. 46, 47. So the contract in the declaration is stated in tho disjunctive; tho breach should be that they did neither tho ono nor the other, Com. Dig., Ib.; 1 Chit. Pl. 334; and an insufficient broach, though aided alter verdict, would be bad on general demurrer, or after judgment by default. There can be no intendment that tho de'ectivc statement of tho broach was supplied by evidence. 1 Chit. Pl. 337, 674, 683, 684; 1 Saund. 288, n. 1; 4 East, 270, 271.
    The note described is not negotiable, because it is not payable, in money.
    Eastern funds is not money, nor is Pittsburg bank paper. Bay. on Bills, 10; Rhodes v. Lindley 3 Ohio, 51; Chit, on Bills, 153, and n.; Jerome v. Whitney, 7 Johns. 461; But. N. P. 272; Jones v. Fale, 4 Mass. 245; Leiber v. Goodrich, 5 Cow. 136; McCormick v. Trotter, 10 Serg. & Rawle; Hasbrook v. Palmer, 2 McLean, 10.
    But if tho court should feel required to sustain a judgment by default, where one count in the declaration is good, and whore it does not appear that tho damages wore assessed upon the defective count, it is still claimed by the plaintiff in error that the record in this case supplies'means by which tho court must arrive at the conclusion that this judgment was rendered and the damages assessed upon tho dofoctivo count* Tho plaintiff in tho court below files in court, as the instrument upon which suit is brought, and which is intended to be offered *in evidence at the trial, a promissory note, which he causes to be copied into the record. The statute does not require him to do this, but does require him to furnish the defendant with a copy of the obligation, or bill of particulars of his demand upon request. Where, however, as in this case, the plaintiff files, voluntarily, a copy of the instrument declared upon, and himself causes it to be copied into the record, as the note referred to and described in the declaration, will it not be regarded as the evidence, and the only evidence, upon which the assessment of damages has been made, particularly when the amount of damages assessed corresponds exactly with the amount appearing to bo due upon the note filed? We think so; and if so, then, would it appear that these damages were . assessed upon the bad count? — for this note could not be offered in evidence under the count for money lent and advanced, as between indorser and indorsee, much less could it be evidence, at common law, of a joint promise by four indorsers, whose indorsement is several, to repay money lent by the plaintiff or holder of the note Nor could it be offered in evidence, under the second count, by force of the statute, because the drawer is not sued.
    If, then, sufficient appears upon the record to satisfy the court of the fact, that the promissory note filed in the cause was the evidence upon which the damages were assessed and judgment rendered, it is clear that such evidence was not applicable to the second count in the declaration, and the first count upon which the damages would consequently have been assessed, being undoubtedly bad, the judgment must be reversed.
    Daniel Peck, for defendant in error :
    The real error relied on is, that the first count is substantially defective; and although the second count is good, yet the judgment, being on the whole declaration, must be reversed, because of the bad count.
    It seems to be admitted that if this judgment had been rendered, on a verdict of the jury it ought to be affirmed.
    *1 think that th e question is reduced to this, whether a case, wherein the court assess the damages, shall stand in the same situation as though the jury had returned a verdict; or if the finding of the court shall be equal to the finding of the jury.
    At the common law, it was not the province of the court to find facts or assess damages, but this belonged exclusively to the jury.
    Iu this state the unsuccessful party in a lawsuit, where a matter of fact was tried by the jury, was taxed with a jury fee. The defendants looked upon the ceremony of calling a jury to find a fact not in any way disputed, at the cost of six dollars, as a very vain affair.
    The legislature of this state, in order to save both time and money, passed an act, “ that when judgment shall be entered by default, against the defendant, the court shall assess the damages, unless the plaintiff or defendant request a writ of inquiry.” Swan’s Stat. 671, sec. 98.
    I think that the finding of the court, and the assessment of the damages in cases of judgment by default, is placed by this act upon the same footing as the verdict of a jury; for the court could not assess the damages with less evidence, or upon different principles, than would the jury.
    In order to save judgments from being reversed, where there was enough in the declaration to sustain the suit, though mixed up with defective counts, section 142 of the practice act was passed. It is this:
    “ That in suits where there are several counts in the declaration, some of which are bad or defective, and the residue good, and the jury shall return a general verdict for the plaintiff, it shall be lawful for the court to give judgment on such good counts, to which the evidence on the trial was applicable, and either before or after motion in arrest of judgment, to strike out such defective counts; and whenever sufficient appears to sustain the verdict, the judgment shall not be reversed on account of such defective counts.” Swan’s Stat. 688.
    This section was considered by this court in the case of Johnston v. Mullin, 12 Ohio, 10. In that case the ^plaintiff brought a writ of error to reverse a judgment rendered on a verdict of the jury on a declaration containing good and bad counts. The record did not show that any evidence had been offered by either party.
    In the opinion delivered in that ease, the judge says: “But a question must first be settled, whether section 142 of the practice act does not require courts to sustain verdicts, even upon defective counts, whon one good count is found among them. It authorizes the court taking the verdict to strike out the bad counts, before or after motions in arrest, to give judgment upon those good ones to which the evidence applies. ‘ And when sufficient appears to sustain the verdict, the judgment shall not be reversed on account of the defective counts.’ This last clause relates to the duty of the court in error, for the word ‘reverse’ is applicable to no othei’.
    “ A majority of the court find, on this record, enough appearing to sustain the verdict. They find two counts upon promises well plead, and the verdict, that they were made as set forth, and they will intend that the damages were computed upon these, unless it appears by the evidence spread upon the record by a bill of exceptions, that it was not thus applicable. For errors in amount of damages will not be corrected on error, unless the record supply the means, and the court of error will presume the correctness of the proceedings they are called upon to inspect, until the errors, appear on their face.”
    Now, in the case under consideration, it does not appear that any evidence was offered or received in support of the claim on the part of the'bank; but this court must intend that every material allegation in the declaration was proved.
    Were it.not for such intendment there would be no safety in rendering judgment upon default, for it would rarely appear that any proof was made of the plaintiff’s demand.
    If the defendant wishes to test the sufficiency or competency of the plaintiff’s testimony, he must spread the evidence on the record by a bill of exceptions. This is the only way such a matter can come before a court of error.
    *It is no objection that the suit was brought as well for a note as for money lent, or that a copy of the note was filed in the case ; for there is not anything in the record which shows that the note was offered in evidence; and the court can not now be called upon to guess what was, or was not, offered in evidence.
    If the judgment in this case should be reversed on the ground that it does not appear, by th6 record, that the testimony was applicable to the count for money lent, then one-half of the judgments in the state might be reversed for the same reason.
    There was never any good reason why a judgment on a declaration which contained good and bad counts should be reversed for that cause, and it has always been held differently in criminal eases. Under such a rule, the court would release one from a judgment for one dollar, because the declaration contained a defective count together with a good one, and would hang him on an indictment having the objectionable features contained in the declaration. The court would require only an excuse to take final leave of such an absurd rule.
    I do not see any good reason why a trial by the court should not stand on the same ground as a trial by a jury. The mischief to be remedied by the statute is the same in both cases.
    If the court should be with me in this part of the case, it will not be necessary to examine that part of the case in which the other errors are assigned.
    The note declared on was payable in bank paper or eastern funds. I do not admit that this note is not negotiable, but it seems to me that it can hardly be necessary to argue the questions raised on the first count. I can not doubt but that the other point concludes the case.
    I ask the court to affirm the judgment, because there is one good count in the declaration, and because the court can not know but that the evidence adduced in support of the same was applicable to the good count.
   *Lane, C. J.

This is a writ of error to tne common pleas of Jefferson couuty. The record shows a suit in assumpsit, by the Bank of Mount Pleasant, against the defendants. The decla> ration contains two counts. The first count is a cause of action against the indorsers of a promissory note, specially setting forth tho facts which render each liable. It is an attempt to frame a special count under the statute to regulate judicial proceedings, where banks and bankers are parties. It is a bad count, because the statute authorizes only the form of “ declaring for money lent.” Swan’s Stat. 149, sec. 51.

The second count is for money lent, and is unexceptionable in form. Judgment was rendered by default.

The plaintiff in error relies on the position that a judgment rendered by default upon a declaration containing two counts, of which one is defective, is erroneous and reversible. The doctrine is correct at common law, and the error is fatal unless cured by our practico.

At tho last term,, it was holden by this court, in Johnston v. Mullin, 12 Ohio, 14, that judgment is not erroneous after verdict rendered upon a declaration containing one good and some bad counts. That rule decides this case, unless a judgment rendered on a default should be followed by different consequences. We think, however, that the same section of the act of 1835, amending the practice act, cures defects of this kind ; for the action of the court assessing damages, under section 98, Swan’s Stat. 671, stands in place of verdict on a writ of inquiry, and may be justly presumed to embrace money due, on a cause of action well stated and left undefended.

The judgment is therefore affirmed, without reference to the other points. Judgment affirmed.  