Penley v. Record

Dickerson, J. The principle cause assigned for the demurrer is the alleged uncertainty as to which of the defendants signed the note in suit. It is argued in support of the demurrer that the designation of the defendant party in the declaration, as of the singular number, renders it uncertain which of the defendants executed the [417] notes. This would undoubtedly be good cause for demurrer, if it was not obviated by the subsequent language of the declaration. From that it appears that the note sued is described as “their promissory note by them signed,” and that the promise to the plaintiff was “joint and several.” This phraseology obviously refers to, and designates both of the defendants previously named in the writ as the promisors, the one equally with the other, and shows that the use of the singular number in the previous description of the defendant party was a clerical error. The intendment of the declaration, as a whole, is clearly discernible from the language used, and that is all that the rules of pleading require. To give effect to a clerical error despite the proof that it is an error, and against the true intent and meaning of the declaration, as a whole, would not only be repugnant to common sense, but a refinement even of the theories of the old writers upon pleading. The case of Hathaway v. Larrabee, 27 Maine, 449, 452, cited by the counsel for the defendants is inapplicable. Waiving the question, whether the same certainty in the description of parties is required in a declaration as in an officer’s return of an attachment of real estate, there is a wide difference between the two cases. In that case there was nothing to explain, qualify or control the return of the officer that he had “attached all the right, title and interest the defendant had in any and all real estate,” &e., upon a writ against three defendants. The court held that this language was too vague and uncertain to create a lien upon the estate of either one of the defendants. In delivering the opinion of the court in that case, Shepley, J., observes, that “courts will give effect to returns made by officers, though informally made, when the intention is sufficiently disclosed by the language used to be clearly discernible,” thus indorsing the doctrine we have applied to the ease under consideration. The other ground of demurrer is not valid, and is not relied upon in the argument. Exceptions overruled. Declaration adjudged good. Appleton, C. J., Barrows, Daneorth, Virgin and Peters, JJ., concurred.