
    Henry against Gamble and Whitlow.
    
      November, 1820.
    1, Debt lies on promissory note to pay $161 15 on a certain day, or on demand, in merchandize, and it is not necessary to aver failure to pay in merchandize.
    IN the Supreme Court of Washington county, the defend, ants in Error declared in debt against Henry, describing the note as made “in said county,”for the payment of $161 15, on the 25th day of December then next, or on Demand, in merchandize, and assigned as breach the failure to pay the money—saying nothing of a demand of, or failure to pay in merchandize. The declaration concludes “ to the “ damage of the plaintiffs Dollars, and therefore they “ bring suit, &c.” In the writ, the damages are laid at #150, and by its indorsement it appears that the note was made and dated at Si. Stephens.
    
    
      
      2, By the in-¿orsement of the eppears to have ¿tstep/ims at It is sufficient to ^declaration ,s made in Washington vOUtity.
    3, Damages o-mittcd in the de-judgment final on demurrer. ciby'reference te ivrit.
    
      Henry. demurred to the declaration,
    and set down as causes of demurrer, 1, That debt will not lie on the contract described in declaration. 2, It appears that the note was made at St. Stephens, and it does not appear from any part of the proceedings that St. Stephens is within the jurisdiction of the Court. -
    The Superior Court overruled the demurrer, and rendered judgment against Henry for the debt and interest. He appealed to this Court, and here assigned as Errors,
    1st, the Court below overruled the demurrer.
    ^ie declaration the breach only alleges failure to pay the debt in money.
    3d, Judgment was rendered for the interest when none i « i "W&S Ci3.1IX16CÍ._ _ _
   The Chief Justice

delivered the opinion of the Court,

By the note the appellant undertook to pay a certain sum °f money on a certain day, or to pay that value in merchandize on demand. It was in the election of the appellees to give effect to the latter clause of the contract, to demand or not demand payment in merchandize. Until such demand, the appellant could not avail himself of this part of the contract. The action for the money was properly brought, and the breach sufficiently assigned.

By the indorsement on the writ the note appears to have been made at St. Stephens. The Court is bound to know that this place is in Washington County, more especially as it is a place recognized by our Statutes as in that County. But this is a transitory action, and the cause of action might have been proved to have arisen in any other County.

As to the last assignment, — It may be doubted whether at common Law it was necessary to lay damages at all in a declaration in debt: (2 Wash. 212.) But our Statute of Jeofails goes farther, and is less qualified, than perhaps any other : by St. 21 Jac. ch. 13 ; “ No judgment after Verdict “ shall be reversed for any variance in form only between “ the original and declaration.” By the Virginia Statute :— “ No judgment after Verdict shall be reversed for any vari- anee in the writ from the declaration, nor for any mistake in “ the Christian name, &c. &c., the same being right in any “ part of the Record or proceedings,” omiting the words' “ in “form only.” The Virginia Statute has been held even in an action sounding in damages, to cure after verdict the omission of damages in the declaration. Our Statute (Laws Ala. p. 454, sect. 36) provides that “ no summons, writ, de- “ claration, return process, or other proceedings, shall be “ abated, arrested, quashed, or reversed, for any mistake in the “ Christian name or surname of either party, sum of money, “ &c. in the declaration or pleadings, the same being right in “ any part of the Record or proceedings.” Our Statute omits the words after verdict, which are used in the St. Jas. 1, and in the Statute of Virginia. Under the operation of the two latter, a judgment after verdict could not be reversed, for the matter here assigned as Error. By our Statute it seems that lio judgment shall be reversed, at any timé,' or under any circumstances, whether after verdict or not, for any mistake in the name, sum, &c. they being right in any part of the Record and proceedings.

Crawford and Hitchcock for appellant, Pickins for ap-pellee. '

The writ is clearly part of the Record for the purpose of amendment.- The amendment would have been properly allowable in the Court below, and this Court is required to consider it as having been made. Let the judgment be affirmed.-  