
    
      W. A. Gourdin vs. J. H. Read, Jr.
    Where in debt on bond, tbe jury, in finding for tbe plaintiff on tbe general issue, assess tbe damages, as under our practice is proper, and allow the plaintiff only tbe principal sum due, but not-the interest, to which he is also entitled, his only remedy is by appeal. Judgment for the interest non obstante veredicto, will not be allowed, nor can he collect it by marking it for collection on the fi.ja.
    Where, by not giving notice in time, a plaintiff has lost the right of appeal from the verdict, he cannot on his appeal from the dicision of a Judge refusing a motion for leave to enter up judgment non ob-stante veredicto, move for a new trial.
    BEFORE O’NEALL, J., AT CHAMBERS, CHARLESTON, JANUARY, 1856.
    Tbe facts of tbis case are stated in tbe reports of tbe same case in 6 Eicb. and 8 Eicb. It was tried before O’Neall, J., at Georgetown, Fall Term, 1855, wben a verdict was rendered for tbe plaintiff for $1,887.82, tbe principal sum due tbe plaintiff. Tbe jury did not allow interest. Tbe defendant gave notice of appeal, and afterwards withdrew it.
    Tbe motion now made was by tbe plaintiff for leave to enter up judgment for tbe penalty, and issue execution- for tbe sum assessed witb interest. This motion bis Honor refused. His report, on tbe plaintiff’s appeal from sucb refusal, is as follows:
    “ In this case, wbicb was an action of debt on a penal bond, tbe jury found tbe factum of tbe bond, and assessed tbe damages of tbe plaintiff at $1,887.82, without interest.
    "The motion before me, is to enter up judgment, non ob-stante veredicto, for tbe sum of $1,887.82 witb interest from tbe time tbe notes given by Commander to tbe plaintiff were due, and to secure tbe payment of wbicb, tbe bond of Commander and Bead, in a penalty of $5,00, and conditioned to pay tbe same, was delivered to tbe plaintiff as collateral security. Tbe parties have also agreed to consider tbe case under this motion, as if tbe judgment was entered for tbe penalty, and tbe execution marked $1,887.82, with interest from tbe 20tb day of April, 1850, to be collected ; and that this was a motion to strike out that portion wbicb directs tbe collection of interest, as contrary to tbe verdict.
    “ I have struggled to reach a conclusion wbicb would authorize tbe plaintiff to collect tbe interest; but I have been able to find no precedent for sucb a decision. If this were a motion for a new trial before tbe proper Court, there is no doubt that it must be granted. But tbe parties have'acquiesced in tbe verdict below. I think I cannot look behind tbe verdict, and that I am bound to regard it as tbe proper assessment of damages under tbe condition. I therefore dismiss tbe motion to enter up tbe judgment non obstante veredicto) and grant that to strike out tbe mark on tbe execution, so far as it directs tbe collection of interest.”
    
      Tbe plaintiff appealed on tbe grounds:
    1. Tbat if tbe defendant bad confessed by bis plea tbat tbe bond was bis deed, and bad pleaded-in bar of tbe action, tbe facts as they appear on tbe Judge’s notes, and a verdict bad been found in favor of tbe plea, it would bave been a clear case for judgment non obstante veredicto.
    
    
      • 2. Tbat tbe only fact submitted to tbe jury was tbe making and delivery of tbe bond to W. A. Grourdin, and tbat tbe further finding of tbe jury is beyond tbeir authority, being upon a matter not in issue.
    3. Tbat if there is any doubt of tbe meaning of tbe jury, it must be removed, by tbe Judge’s notes, which show tbat they bave undertaken to find tbat tbe principal of a note over-due, secured by a bond, does not bear interest. ‘
    4. If tbe appeal from tbe decision of bis Honor on tbe motion to enter up judgment for tbe penalty, and to issue execution for tbe principal and interest due be refused, then tbe plaintiff will move for a new trial, on tbe ground tbat tbe construction of á written instrument belongs to tbe Court; tbat tbe jury bave found a verdict on a matter which they bad no right to do; tbat they bave construed tbe instrument wrongly, and tbat no presumption can reconcile tbeir verdict with tbe evidence.
    Petigru, for appellant.
    Mitchell, contra.
   Curia, per'O’Neall, J.

In this case, I bave seen no reason to alter tbe opinion expressed on the rule.

It is true tbe plea of non est factum, merely puts in issue tbe execution and legal validity of tbe bond.

But our practice Has become inveterate to assess tbe damages on tbe condition of tbe bond at tbe time tbe factum is tried and established.

It is a very convenient practice, and ought not to be disturbed.

In this case tbe jury ought to have found'the interest, but having refused to find it, it follows that tbe plaintiff’s only remedy was by a motion for a new trial on that ground. But be failed to give notice properly, and is thereby concluded.

He cannot make that ground on tbe appeal from my decision, on tbe rule.

Tbe motion is dismissed.

Wardlaw, Withers and Whither, JJ., concurred.

Motion dismissed.  