WILLIAM L. CAMPBELL, APPELLANT,

v.

CHAFFEE, ST. ARNAUD AND CROFT, APPELLEES

Í>U PONT, J.,

delivered the opinion of the court.

This was an action of assumpsit, brought by the appellees to recover from the appellant the amount due upon a promissory note. The summons ad respondendum omitted to state the damages, but was in other respects in the usual form. At the appearance term, the defendant filed a plea in abatement in the following words, to wit:

“The defendant, by James Gettis, prays judgment of the said writ and declaration, because he says that there is no sum of money whatever set forth or spoken of in said writ; and this the said defendant is ready to verify. Whereupon he prays judgment of the said writ and declaration, and that the same may be quashed,” &c.

To this plea there was a demurrer filed which was sustained by the court, and the plea adjudged to be bad. At the next succeeding term a judgment for the damages was entered for the plaintiffs ; whereupon the defendant prayed an appeal to this court, and now assigns for error the over-ruling of his said plea in abatement. *

Under this assignment of error two questions are presented for our consideration : First, whether the omission: to state the damages in the summons is such a defect as will render the summons entirely void ? and, secondly, if it were, whether it could be taken advantage of by plea in abatement ?

The statute regulating the. commencement of suits provides for the filing of a prceeipe or memorandum in the Clerk’s office, previous to the commencement of the suit, in which is to be set forth a statement of the names of the parties^ the nature of the action and the amount of the debt or damages ” sued for. It further provides, “ that i shall be the duty of the clerk upon the receipt of such praecipe' or memorandum, to make out therefrom a writ of capias or summons ad respondendum, which shall be called the original and which shall he served by the sheriff,” &c.—Tide Thompson’s Digest, 325.

Erom the fact that it is required that the prceoipe. shall state the debt or damages sued for and that the summons shall be made out therefrom, it is but a natural inference that the debt or damages should also appear in the latter. This inference is too obvious to need any elaboration. But whilst we adopt this conclusion, and would enforce upon the clerks of the Circuit Courts the propriety of a strict attention to this direction of the statute, we cannot admit that the omission to insert the debt or damages will render the summons void. We are rather inclined, where the debt or damages are stated in the prceoipe, to look upon such omission as a misprison of the clerk, and to accord to the plaintiff the benefit of an amendment. As the defence to the merits is always made to the cause of action as set forth in the declaration, there can he no surprise to the defendant, nor can the omission work any detriment t<fhis rights. The office of the summons ad respondendum is to notify the defendant of the nature of the demand to be made against him, and to call him into court to respond thereto. If the names of the parties to the suit, the nature of the action and the time for the appearance he distinctly set forth in the summons, it would seem to be all that is requisite, until the filing of the declaration, to enable the defendant to prepare for his defence; and the omission to state the, amount of the debt or damages must be viewed merely as au irregularity and curable by amendment.

it is true that in this case no amendment was asked for or made, hut the plaintiff proceeded to take his judgment the damages while the summons remained thus un» amended. It is, however, well settled, that upon error brought, where an amendment in matter of form is admissible, the law will presume that it has been made and will give the party entitled to the same, the full benefit of it, as though it bad been actually made.—Vide Tidd’s Practice, 928, citing 2 Str. 1,011; Stephens vs. White, 2 Wash. S., 203. The cases of McClelland vs. Crafton, 6 Greenleaf, 307, and Clark vs. Herring, 5 Binn., 33, cited to the point under consideration by the counsel for the appellant, from 1 Metcalf & Perkin’s Digest, 146, § 60, do not sappc-i; the position assumed, but rather sustain our views. The citation from the Digest is as follows': “ The total omission or the smallness of the ad damnum in a writ cannot pro perly be considered as merely a circumstantial error within the statute of 1821, chap. 59, after the rendition of judgment; but, until judgment, it may be so considered.' Therefore, where no damages had been laid in the writ, the plaintiff, after verdict and before judgment., may have leave to amend by inserting a sufficient sum.” How it will be here noted that the materiality of the omission is made to depend upon the peculiarity of the local statute, and that, notwithstanding such materiality, the error was amendable before judgment.

On the same page of the Digest, and in paragraph 61 it is said, “ but where no ad damnum is inserted in the writ, and the jurisdiction of the court depends on the amount of the damages demanded, the defect cannot he amended,” citing 2 N. H., 322, Hoit vs. Molony. In this case it will be seen that the refusal to permit the amendment is based upon the fact that the amount of the ad damnum determined ¿he jurisdiction of the court, and as our Circuit Courts are not thus limited, the authority is not applicable.

As a farther argument in support of our views, it may be remarked _that in the majority of the States where this question has been adjudicated, special bail is allowed, and therefore the amount of the ad damnum is in some measure essential to be stated in order to determine the amount of the bail, while in our State there is no such thing as special bail. It is doubtful whether even at common law it was usual or necessary to insert in the original process the amount of the debt or damages. This inference is clearly deducible from what is said by Mr. Tidd in his treatise on Practice. Speaking of the original process used in the several courts, he says : “ Before the making of the statute of 13 Car. II, Stat. 2, c. 2, a defendant might have been arrested and holden to bail for any sum of money upon a common bill of Middlesex or latitat, &c., not expressing the particular cause of action. It consequently happened that he was frequently arrested and holden to bail or imprisoned for a large sum of money, when perhaps there was no real plaintiff or no cause of action. To remedy this mischief, it was enacted that ‘ no person arrested by any sheriff, &c., by force or color of any bailable writ, bill or process, issuing out of King’s Bench, wherein the certainty and true cause of action is not expressed-particr ularly, shall be compelled to give security for his appeaiv anee in any penalty or sum of money exceeding the sum of forty pounds.’ ” * * * * “ In trespass, therefore, and other cases, where the defendant either cannot or is not meant to be arrested and held to special bail, the process is in general, in common form, requiring the defendant to answer the plaintiff in a plea of trespass.” * - * * * “When the cause of actiop is of a bailable nature, .and it is intended to arrest the defendant and hold him to special bail for a larger sum than forty pounds, there should be a clause of a a etiam in the process, and in such case, an omission in the ac eUam part of the writ of the sum for which .the .defendant is arrested, or that it was due on promise? 3s irregular and he cannot be holden to special bail thereon.” 2 Tidd Prac., 149-’50.

The same author at page 159, remarks further on this subject, “ By the statute 12 Geo. 1, c. 29, s. 2, the sum specified .by the affidavit of the cause of action is required to be indorsed on the back of the writ or process for holding the defendant to special bail. This part of the statute, how.ever, is merely directory to the sheriff, and does not avoid the process when the sum sworn to is not indorsed upon it.”

Prom this authority it would seem that the only object to be accomplished by stating the amount of the debt or damages in the process, is to lay the foundation for holding the defendant to bail, but as by our statute no bail can be required of the defendant, the rule would seem to be inapplicable to our practice, upon the maxim of cesante ratione, cesat i/psa lex.

The next question proposed to be considered is how such omission may be taken advantage of, whether by motion, or by plea in abatement. It is laid down in all of. the treatises on the subject of pleading that as oyer of the writ cannot now be craved, no matter apparent upon the face of the writ can be made the subj ect of a plea in abatement, unless the mistake in the writ be carried also into the declaration. Only matters extrinsic, or dehors the writ, such as misnomer, coverture, non-joinder, &c., &c., can be thus pleaded. Yide 1 Chitty on Pleading, 279, 485, and ’6; Tidd’s Practice, 636. Matters apparent upon the face of the writ must therefore be the subject of motion.

The citations made by the counsel for the appellant, from 1 U. S. Dig. p. 5, § 85, 86 and 87, are manifestly in conflict with the English rule upon the subject. We have not had access to the cases referred to, and it is not improb able that the doctrine as laid down in the Digest, may be broader than is warranted by the cases.

. Upon a mature consideration of the subject, we áre of opinion that there was no error in overruling the defendant’s plea in abatement. Therefore let the judgment of the Circuit Court be affirmed.