
    A. C. Wilson vs. J. King.
    
      July, 1841.
    In a declaration on a note which stipulates for twelve per cent, interest it is not necessary to set forth the interest.
    Interest follows as a legal consequence.
    It is error to take judgment by default at the first term in- an action on a note without proof of signature.
    Where a note stipulates for twelve per cent, interest the amount thus agreed is substituted for that fixed by law, and the judgment will carry that rate of interest till paid.
    This was an action of debt on a promissory note.
    Judgment was rendered by default and it was referred to the clerk to assess the damages for the plaintiff.
    The case comes here on the following assignment of errors:
    
      First. The sheriff’s return does not show that the process was served ten days before the first day of the term at which judgment was given.
    
      Second. There is a variance between the writing obligatory as set out in the declaration and the one filed upon which judgment was entered.
    
      Third. There was no appearance of the defendant in the court below, and judgment was taken at the first term after issuing process without proving his signature.
    
      Fourth. The. judgment entered was to draw twelve per cent, interest per annum till paid contrary to the statute in such case provided.
    Teas for plaintiff in error.
    The variance is such as would be fatal on plea of non est factum. The words “with twelve per cent interest” are omitted in the declaration. There was also error in estimating intérest at twelve per cent, upon the judgment or after action brought. The statute declares that after monies are due six per cent, only shall be allowed.
    Hall for defendant.
    The writ was returned on the fourth March, which was more than ten days before court, and expressed to be served on'the third, omitting the month. It is therefore evident that it was served ten days before court.
    It is not necessary to state the note as bearing interest unless there is a count for interest. Interest follows as a legal consequence of indebtedness. It does not appear that judgment was given without proving the signature. The record being silent it is to be presumed it was proved.
    The contract was for twelve per cent, till paid. The judgment was the carrying out that contract, and the same interest should run till the debt is paid.
    
      Teas in reply. A judgment is not a coutract. As soon as judgment is rendered the contract ceases and the rate of interest expressed in the contract céases. A judgment bears only the legal rate of interest, whieh is allowed by law in cases where the rate of interest is not expressed.
   BY THE C0T7HT.

The first error assigned in this case is that tiie sheriff’s return does not show that the process was served ten days before the first day of the term at which judgment was given. Unless, the service were actually made ten days prior to the first day of that term the defendant was not bound to plead, and the judgment by default was irregular. The sheriffs 'return states that it was served on the third 1841, without naming the month. But inasmuch as the summons was issued on the 27th of February and as the date of the return is March 4th, 1841, we are authorized to conclude that it was served on the third of March of that year. As the court at which judgment was rendered commenced on the 14th of that month there was ten days between the service-and the first day pf the cohrt.

An alleged variance between the instrument set out in the declaration and that produced in proof is another supposed error in the- proceedings below. The declaration, in describing the instrument, makes no mention of interest, whereas the instrument itself stipulated for twelve per cent, interest from the time the money became due until paid. The writing obligatory is only set forth ill the deelaration according to its legal effect. Interest at some rate follows as a legal consequence from the time the money was due. Nothing more is done than to fix the rate. We do not think it was necessary to set this forth in the declaration;

The third error assigned is that judgment was taken by default at the first term after the suit was Commenced, without proving the signature of the defendant. If this should appear from the record it would be error, for the statute requires such proof. But as the record is silent on this subject, the courtbelow will be presumed to have done its duty, and to have required the proof previous to allowing the judgment to be. entered.

Lastly. The judgment was entered to draw twelve per cent, interest, and this is deemed contrary to law. We do not think so. The statute fixes six per cent, as the rate of interest when nothing is stipulated oh that subject, but it allows the parties to contraet for any rate not exceeding twenty per cent. ' When this is done the rate thus agreed upon is substituted for that prescribed by law, and we think it should be continued until the money is actually received, The original contract may be regarded as mérged ih the judgment, it is true, still wp think the latter should carry out the spirit and intention of the original agreement.

A different rule would enable the party to take advantage of' his own wrong. Having failed to perform his agreement and driven the other party to the necessity of resorting to a'suit at law, it seems to us unjust that he should be enabled to take advantage of that circumstance for the purpose of avoiding one of' the stipulations of his original contract. Except for the most cogent reasons individuals should be allowed to make such contracts as they think proper, with, which the laws should not interfere except for the' purpose of carrying them into effect.

The judgment below will therefore be affirmed.  