
    Simeon C. Geren vs. John Wright.
    It is erroneous in an action of assumpsit to give judgment for a greater amount of damages than is claimed in the declaration; but it seems that the court should on application permit the plaintiff to amend his writ and declaration by enlarging the amount of damages claimed, where they have been laid at too small a sum.
    In eri'or from the circuit court of Carroll county ; Hon. Benjamin F. Caruthers, judge.
    John Wright instituted an action of assumpsit againstSimeon C. Geren, upon a promissory note, for the sum of one hundred and eighty-five dollars; and at the conclusion of the declaration, laid his damages at one hundred dollars. To this action Geren plead non assumpsit, and at the term following withdrew his plea; whereupon judgment was entered against him for the full amount of the promissory note sued on, with interest, amounting to two hundred and four dollars and seventy-four cents; at the same term Geren moved the court to arrest the judgment and enter a remittitur, for the excess of the judgment over the amount of damages levied; the motion was overruled by the court below. Whereupon he prosecuted this writ of error. '
    
      Waul and Marr, for plaintiff in error.
    In assumpsit or other actions sounding' in damages, the plaintiff cannot recover more damages than he has laid at the end of his declaration. Stephens on PI. p. 474; Cbitty’s PL p. 339; Tidd’s Prac. 9th ed. p. 896. The point is likewise decided by our own appellate court. Patten v. Prescott, 2 How. R. 686.
    
      William and William G. Thompson, for plaintiff in error,
    cited, Chevely v. Morris, 2 Black. R. 1300; Wray v. Lister, 2 Str. 1110; Robert Pilford’s Case, 10 Co. 116, 117; Com. Dig. Pleader, C. 784; Bac. Ab. Damages, D. 2; Vin. Ab. Damages, R.
   Mr. Justice Clayton

delivered the opinion of the court.

It was settled by the court, in the case of Potter v. Prescott, 2 How. 686, that it is erroneous to give judgment in an action of assumpsit for a greater amount of damagesj than is,claimed in the declaration. That case is decisive of the present.

The judgment must be reversed and the cause remanded. We presume, that the court below upon application, will permit the plaintiff to amend his writ and declaration by enlarging the amount of damages claimed.

Judgment reversed and cause remanded.  