
    Joseph Hemmenway et al. versus William H. Hickes et al.
    
    
      A right to file exceptions, under St. 1820, c. 79, § 5, is not equivalent to a right of appeal; error therefore lies to the Court of Common Pleas in cases where the ad damnum does not exceed one hundred dollars.
    Writ against Joseph H. and Phineas H. Declaration alleging a promise by 66 said John and Phineas.” Held to be error, after a judgment upon a default.
    Declaration alleging that the defendants “ promised the plaintiffs to pay them or their order the sum of” &c., without averring any consideration, and judgment upon a default. Held, on error, that the Court could not intend the promise to be by a promissory note, and that the want of an averment of a consideration was fatal.
    But whether a declaration upon a promissory note must not aver a consideration, quaere.
    
    Where judgment is rendered for a sum greater than the ad damnum, the error is cured by a remittitur of the excess entered at a subsequent term of the court rendering the judgment.
    Error to the Court of Common Pleas. Joseph Hemmenway and Phineas Hemmenway, the original defendants, were attached to answer to Hickes et al., the original plaintiffs, “ for that the said John and Phinéas, at &c., promised the plaintiffs to pay them, or their order, the sum of one hundred and seven dollars and thirty-two cents, on demand, with interest. And also, for that the said John and Phineas, at &c., being indebted to the plaintiffs in the sum of nine dollars and twenty-five cents,” &c. The ad damnum was laid at' 100 dollars. Judgment was rendered upon a default.
    
      July 22, 1826.
    Among the errors assigned were, 1. that in the writ of Hickes et al. it is not alleged that Joseph and Phineas H. were indebted to them ; — 2. that in the first count it does not appear, that the promise therein set forth was upon any consideration ; — and 3. that the judgment for damages was for a greater sum (viz. 123 dollars and 53 cents) than the damages claimed in the writ.
    At the next term of the Court of Common Pleas after the judgment was rendered, upon motion of the original plaintiffs and notice to the other party, a remittitur of the excess of damages was entered upon the record. This, it was stated by the counsel, was before the xvrit of error was sued out, but not until after Joseph H. had been committed on execution and had broken his bond for the prison liberties.
    The counsel for the present defendants noxv moved that the writ of error be dismissed, on the ground that the right to file exceptions, under St. 1820, c. 79, § 5, in cases in which the ad damnum does not exceed 100. dollars, is substantially a right of appeal, and therefore error will not lie. Savage v. Gulliver, 4 Mass. R. 178; Jarvis v. Blanchard, 6 Mass. R. 5; Champion v. Brooks, 9 Mass. R. 228. [Rand’s ed. 229, n. (a.)] The 6th section, respecting xvrits of error, gives the party no right which he had not before the passing of the statute.
    But the Court appearing to lean against the motion, Peabody supported the writ of error, and cited as to the second error, 1 Chit. PI. 298 ; Lawes on Assumpsit, 59 ; — and as to the third, Grosvenor v. Danforth, 16 Mass. R. 74.
    The counsel on the other side admitted, that the mistake in calling Joseph H. by the name of John, would have been fatal, had advantage been taken of it in season; but they insisted that the defect was cured by suffering a judgment by default. 5 Dane’s Abr. 705, § 32; Wolf v. Stepney, Cro. Eliz. 865; 15 Vin. 411, Misnomer, C 4; 15 East, 159; 1 Marsh. R. 474; 6 Taunt. 115; 2 Price, 328; Symmers v. Wason, 1 Bos. & Pul. 105.
    
      Jan. 13th, 1827.
    As to the second error assigned, they said that it was sjf ficient to state a promise substantially according to its legal effect; 10 Mass. R. 230; 3 Mass. R. 160; that the first count was in fact upon a promissory note, but it was not necessary to allege it to be so, as no proferí of the note is required ; Chitty on Bills (5th ed.), 452; that a promissory note imports a consideration, without the words “ value received,” and in declaring upon it a consideration need not be stated ; Bayl. on Bills (Phillips and Sewall’s 1st ed.), p. 25, and note 71, and p. 275 ; Chitty on .Bills (5th ed.), 12, 13, 87, 452; 4 East, 455 ; 8 East, 7 ; 2 Bos. & Pul. 79 ; and that the fact, that the promise in this case was by a note, being matter of evidence only, it was not necessary to allege a con-, sideration for the promise set forth ; Carter v. Goddard, Cro. Eliz. 79 ;— and further, that every thing was to be intended against the defendant after a verdict, and, by our St. 1784, c. 29, § 14, after a default, and it was too late to make this objection to the first count. 1 New Rep. 172.
    To show that the third error assigned was cured by the remittitur of the excess of damages, they cited 6 Dane’s Abr. p. 279, § 2, 7, and p. 302, §11; Hutchinson v. Crossen, 10 Mass. R. 252.
   Parker C. J.

delivered the opinion of the Court. By the record it appears, that the judgment of the Court of Common Pleas could not have been appealed from, the damages demanded being not more than 100 dollars ; and so the writ of error cannot be dismissed on that ground. That the court rendered judgment for more than the ad damnum, did not entitle the defendant to appeal therefrom, for it was erroneous ; unless a remittitur entered at the next term after judgment, in the Court of Common Pleas, cured it. And we think it did, for it seems a remittitur may be entered, as well after judgment as before, by the court where the record is by the law supposed to remain; as appears by the case of Hutchinson v Crossen, 10 Mass. R. 252; 1 Sellon’s Pract. 481. In 6 Dane’s Abr. p. 279, § 2, is cited a case in Essex, June term 1796, where on error brought because the damages exceeded the ad damnum, the plaintiff was allowed, by way of amendment, to release the excess. And in Pickwood v. Wright, 1 H. Bl. 642, it was expressly decided, that a remittitur might be entered after judgment and after error brought.*

The first count is very clearly bad, in not showing any consideration for the promise declared on. Authorities have been cited to show that no consideration need be averred, but the cases cited are all of bills of exchange or promissory notes, which may be thought to import a consideration. The declaration in this case is only, that the defendants promised the plaintiffs to pay them, or their order, one hundred and seven dollars and thirty-two cents. Whether it was a written or verbal promise does not appear, and the Court cannot intend it to be a promissory note. This no doubt was a mere clerical mistake, which might have been amended at the Court of Common Pleas; but standing as it does, and this Court having no power to amend it, the judgment must be reversed for this error.

It certainly is questionable, whether if the promise had been declared to be by a promissory note, and no value re ceived were averred, the count would be good, notwithstanding the passage cited from Bayley ; which does not appear to be supported by the case referred to in the margin, and a contrary inference is to be drawn from the case cited from 2 Bos. & Pul. 79. The doctrine of that case is, that in all declarations on simple contracts, a consideration must be averred. The case of a hill of exchange may be an exceptian, that being treated rather as a specialty, which imports a consideration in itself. And we do not find in any of the cases cited, that it is clearly laid down, that counts in assumpsit on simple contracts are good without an averment of consideration.

April 2d.

After the foregoing opinion was delivered, it was suggested, that for the error therein maintained the judgment could be reversed in part only; and the Court afterwards considered the remaining error.

Parker C. J.

As to the second count, the error assigned is, that no promise is alleged, nor any cause of action shown, against the parties sued. They were attached by the names of Joseph and Phineas, and the count avers that the said John and Phineas” made the promise. This is undoubtedly bad ; and the only question is, whether for this cause judgment shall be reversed. It is not like any of the cases which are cured by a verdict, for among all which were cited to that point, we do not find one which goes beyond the curing of a misnomer. This is not a misnomer, for the defendants were attached by their true names ; the defect is in the declaration, it not showing any cause of action against the parties sued. If the defendants bad appeared and pleaded, talcing no advantage of this mistake, we will not say that they should be allowed afterwards to avail themselves of it on error; but here was a default, and nothing can be presumed but what appears in the declaration.

Judgment reversed. 
      
       See Herbert v. Hardenbergh, 5 Halsted, 222, and the cases there commented on; Davenport v. Bradley, 4 Connect. R. 309; Coster v. Phenix, 7 Cowen, 524.
     
      
       See 1 Chitty’s Pl. (6th Amer. ed.) 321, 322; Douglass v. Davie, 2 M'Cord, 218; Burnet v. Bisco, 4 Johns. R 235; Beauchamp v. Bosworth, 3 Bibb, 115; Moseley v. Jones, 5 Munf. 23; Curley v. Dean, 4 Connect. R 265.
     
      
       See Hutchinson v. Crossen, 10 Mass. R (Rand's ed.) 253, n. (b).
     
      
       But it is held in New York, that a promissory note imports a consideration, and it is unnecessary to state any in the pleading, or to prove any upon the trial in the first instance. Bank of Troy v. Topping, 13 Wendell, 557 See also Bayley on Bills, (Phil, and Sewall’s 2d ed.) 33, 433, 434; Horn v. Fuller, 6 N. Hamp. R. 511.
     