James Davis plaintiff in error, vs. John Morford and A. D. Stephen and ux.

July, 1841. James Davis plaintiff in error, vs. John Morford and A. D. Stephen and ux. Error in the form of entering judgment will not prejudice the party, and is not such as should affect the judgment. It is not error for the court to assess damages instead of. the clerk. It is optional with the court to do it or to direct the derk to do it. This was an action of debt on bond executed by. Davis to John, and Raohel Morford, now Rachel Stephen, one of the defendants. The “judgment was “that the plaintiffs have and recover of the defendant “ the sum of one hundred and sixty-three dollars and twenty-five cents “ their damages aforesaid in form aforesaid.assessed, &c. Thereupon Davis brought the case up to this court on the following assignment of errors. First. The .action is in debt; the judgment- is as in assumpsit. Second. The judgment is in damages, whilst the writ and declaration are in debt. Third. The court assessed the damage when by the law of the land the clerk should have assessed the same, or it should have been submitted to a jury, therefore in this there is .error. Whicher for plaintiff. [MAJORITY — BY THE COURT.] BY THE COURT. The two first, errorg assigned in this case are in- substance that the action being in debt the form of the judgment is as though the action had been assumpsit. We do not think this such an error as should affect the judgment. It is erroneous only in form, and could work no prejudice to the defendant. The third error alleged is that the court appears to have assessed the damages when the law provides that the court may direct the clerk to do so. The language is not imperative, and seems to leave the matter optional with the court. It authorizes the matter to be referred to the clerk because it is one of mere calculation. At all events if there were no error in this calculation the plaintiff in error has .sustained no injury. As nothing of this kind is alleged the judgment below will be affirmed.