Fant v. Cathcart. est of the infant, and sanctioned by many judicial decisions. [See 3 G. & Johns. Rep. 103; 2 N. Hamp. Rep. 456.] That an infant may affirm a voidable contract, made during his minority, is a proposition too well settled to be now controverted. This may be done by express ratification; in some cases by the performance of an act from which an affirmance may be reasonably implied; and in others the omission to disaffirm a contract in a reasonable time after attaining majority, has been held sufficient evidence of a ratification. These several modes of affirmance are not alike applicable to every description; but upon this point it is needless to be more specific, than to say, that a contract, such as that now under consideration, may be confirmed by a promise of payment. [6 Conn. Rep. 505; 4 Pick. Rep. 48; 11 Sergt. & R. Rep. 305; 4 McC. Rep. 241 ; 14 Johns. Rep. 124; 1 Pick. Rep. 221; 6 Greenl. Rep. 89; 2 South. Rep. 460; 1 Strange's Rep. 690; 1 Atk. Rep. 489; 4 Camp. Rep. 164.] In Reed v. Batchelder, [1 Metc. Rep. 559,] it was decided that a negotiable note made by an infant, is voidable, and not void; and if after coming of age, he promise the payee that it shall be paid, the payee may negotiate it, and the holder may maintain an action in his own name against the maker. So it has been adjudged that where a single bill was given by an infant for necessaries, who after he became of age promised to pay the amount, the action must be brought on the specialty, which was a higher security than the parol promise, and validated by it. [Bull. N. P. 155.] But it was held that as the bond of an infant, with a penalty, was void, it did not merge the simple contract debt; and the action must be founded upon the new promise, and not on the bond. [3 M. & S. Rep. 477; 2 B. & C. Rep. 824.] It is laid down by McPherson, in his Treatise on Infants, p. 498, that although an infant cannot bind himself in an obligation, or other writing, with a penalty, even for the payment of necessaries, yet an obligation from him in the precise sum disbursed, was good, and in such case, judgment was given for the plaintiff in debt, on a bill single. [See 1 Lev. Rep. 86; 1 Camp. Rep. 552, note.] So it is said, that all deeds which are merely voidable, may be confirmed at full age. [McPherson on Inf. 486-7.] This view of the law may suffice to show, that the writing de Childs v. Crawford. clared on, is not void, but voidable only, (if not for necessaries,) that the defendant might ratify it after he became of full age, and that if ratified, the action thereon is maintainable. The replication to the second plea, was, in legal effect, an admission that the defendant was under twenty-one years of age, when he executed the writing in question, and devolved upon the plaintiff the onus of proving a promise to pay it after he had attained his majority. Evidence was adduced to this point in the deposition excepted to; whether it was sufficient or not, is a question not now before us; it was certainly pertinent, and properly received, and if the defendant had desired, he could have prayed the instructions of the Court upon it. It was not necessary for the plaintiff to show that the specialty was given for necessaries sold to the defendant; we have seen that it was merely voidable at the election of the defendant, and when he acquired capacity to contract, might be affirmed by his parol promise. The issue then being upon the fact of the promise alone, the testimony of Elder, except as it tended to establish it, was unnecessary and superfluous. Whether the answers of the witness would be evidence in a case that required such proof, it is needless to inquire, since in the case before us, it could not have misled the jury; at least, there is nothing in the record that warrants such an inference. The conclusion is, that the judgment is affirmed. CHILDS v. CRAWFORD. 1. In certiorari cases, it is error to award judgment for damages on account of delay merely, although the jury so find. A judgment so entered cannot be considered as a clerical misprision, but is the fault of the party taking it, and will be reversed and here rendered for the proper sum. Writ of Error to the County Court of Randolph. Childs v. Crawford. THIS suit was commenced in a Justice's Court, by Crawford against S. & J. J. Childs, and after judgment was removed by certiorari into the County Court, upon the application of the defendants. In the County Court, the canse was submitted to a jury, and it appears from the judgment entry, that the verdict was for the plaintiff for $55 58, and fifteen per cent damages on the same for delay. The judgment was rendered by the Court for the sum so ascertained by the verdict, with fifteen per cent. upon it. This is now assigned as error. J. FALKONER, for the plaintiff in error. S. F. RICE and T. D. CLARK, for the defendant in error. GOLDTHWAITE, J, - The statute which gives damages when it appears to the Court that an appeal was taken for delay merely, (Dig. 315, § 13,) does not in terms include suits removed by certiorari; and in Hudnell v. McCarty, Minor, 402, it was held not to warrant the assessment of damages in such a suit. The fact that the jury have returned a verdict for this amount of damages will not sustain the judgment rendered on it, because that was not a matter within the issue, and the plaintiff should not have taken judgment for any thing but the sum found due upon his demand. It is supposed this, at most, is a clerical misprision, which could be corrected on motion, in the Court below; we should have been pleased if we could have arrived at this conclusion; but the duty of the clerk is to enter the judgments according to the verdicts, unless otherwise directed by the Court, which itself is merely passive. In point of law, it is the duty of the party so to free the verdict and judgment from extraneous matter, as not to create error, to the injury of the opposite party. Judgment reversed, and here rendered on the verdict for the proper sum. Anderson v. John and Thomas Dickson. L ANDERSON v. JOHN AND THOMAS DICKSON. 1. In declaring on a bond with condition, the plaintiff may declare upon the penalty, or set out the condition and assign breaches at his election. If he pursues the latter course, advantage may be taken of an insuffiient assignment of breaches, in the same manner as if they had been assigned in answer to a plea of performance. 2. It is not necessary to assign as a breach any fact which is admitted by the bond itself. 3. The only breach necessary to be assigned in a suit upon the bond which the plaintiff in detinue is required to execute, upon suing out the writ, is the failure of the plaintiff in the suit. 4. This Court will judicially notice when the terms of the Courts are held. Error to the County Court of Marengo. DEBT, by the plaintiff against the defendants in error, upon a bond in the penal sum of $8,000, made by the latter, to the former under the statute, for the prosecution of an action of detinue for certain slaves. 8 733 141 298 141 299 The declaration, after reciting the obligatory part of the bond, proceeds to recite the condition, "to wit: That is, the said John Dickson had, on the day of the date of said bond, issued out of the office of the clerk of the Circuit Court of Marengo County, a writ in detinue, as guardian of William J. White, and Thomas D. White, returnable to a certain term of said Court, to be holden in and for said county, on the fourth Monday after the fourth Monday in March, 1843, to recover of the said John B. Anderson, certain slaves, to wit: &c. &c. then in the possession of the said Anderson. It was therefore conditioned, that if the said J. Dickson should fail in the said suit, he should pay the said plaintiff, John B. Anderson, all costs and damages which he might sustain by the wrongful suing out of said writ, then this obligation should be null and void, as by the said writing obligatory and the condition thereof will more fully and at large appear. And the said plaintiff avers, that afterwards, to wit: at the fall term of the Circuit Court of the county aforesaid, in the year 1843, the said action of detinue, in the said condition mentioned, was tried, and legally terminated, 1 Anderson v. John and Thomas Dickson. and the said J. Dickson did fail in said suit. And the said plaintiff also avers, that by the wrongful suing out said writ in detinue, he has sustained costs and damages to a very large amount, to wit, the amount of one thousand dollars, of all which the defendants had notice, no part of which the defendants have as yet paid, although often requested; by reason of which said breach, the said writing obligatory became and was forfeited, and an action hath accrued to the plaintiff, to demand and have of the said defendant the said sum of $8,000, &c. To this declaration the defendants demurred, and the Court sustained the demurrer, and rendered judgment for the defendants, which is now assigned for error. LYON and HOPKINS, for the plaintiff in error, contended, that the averment of the time of commencing the suit was sufficiently certain. That the plaintiff was not bound to assign breaches until a plea of performance. [4 Ala. Rep. 243; 2 Stew. 370; 5 Porter, 395.] PECK and BROOKS, contra. The declaration is uncertain, In not alledging the time and place where the action was commenced, nor when and where it was determined. It is not shown that the sheriff was authorized to seize, or did seize the property of the plaintiff. Every material averment must be alledged with precision and certainty, and not by way of recital. It is not shown that the plaintiff was damaged. [1 Ala. 454; 21 Wend. 270.] ORMOND, J.- Our statute authorizing the plaintiff to assign as many breaches as he thinks proper, Clay's Dig. 330, § 97, is a transcript of the 8 and 9 Wm. 3, c. 3, under which it has always been held, that the plaintiff may sue for the penalty of the bond, and need not assign breaches until the defendant craved oyer of the condition of the bond, and pleaded performance. [Gainesford v. Griffith, 1 Saunders, 72, in note.) But the learned commentator upon Saunders suggests, that the better plan is to set out the condition, and assign breaches in the declaration. When that is the course pursued, as in this case, it must certainly be attended by the same consequences, as if the breaches had been 1 |