
    Crabb’s Executors vs. Nashville Bank.
    In an action of assumpsit, it is error to render judgment for a greater arn0Unt of damages than is laid in the writ and declaration.
    When judgment is rendered for a greater amount of damages than is laid in declaration, the judgment will be reversed in the supreme court; but the defendant in error may enter a remittitur in the appellate court for the excess, and take judgment.for the amount laid in the declaration, and interest from the time of the rendition of the judgment below.
    This was an action of assumpsit. The writ and declaration laid the damages at eight thousand dollars, the verdict and judgment were for eight thousand four hundred dollars. No remittitur was entered in the court below. The defendant appealed in error to this court.
    
      F. B. Fogg, for the plaintiff in error.
    The only error in this case is, that the damages assessed by the jury, and the judgment is for more than the damages laid in the writ and declaration. This is an action of assumpsit in error, for which the judgment must be reversed. Percival vs. Spenser, Yelverton’s Rep. 45, a: 1 Saunders’ Rep. 285, note 6: 2 Strange’s Rep. 1110: Charly vs. Morris, 2 Blk. Rep. 1300: 4 Maulé and Selwyn, 94: 1 Maulé and Selwyn, 675.
    
      G. S. Yerger, for defendant in error.
    1st. The judgment in this case is for more than is laid in the writ and declaration, but it may have arisen from procrastination, and, it is conceived, is not an error affecting the merits. Act of 1809, ch. 126, sec. 10: Stuart vs. Davidson, Peck’s Rep. 202.
    2d. But if it is error, the circuit court ought to have entered judgment for the amount laid in the declaration, notwithstanding the verdict. Overall vs. Babson, 2 Yer-ger’s Rep. 71. This court, if it reverses the judgment, must enter such judgment as the circuit court ought to have done, or might legally do, which will be eight thousand dollars, with the interest upon it from the time the judgment was rendered below. At all events, a remitti-tur may be entered for the excess. Yelverton’s Rep. 45. And this may be done after error brought. 4 Maulé and Selwyn, 94: 2 Archbold’s Practice, 221: 1 Arch-bold’s Practice, 197.
   Peck, J.

delivered the opinion of the court.

On authority we are compelled to reverse this judgment, the damages found by the jury and the judgment being for more than is laid in the writ and declaration. Yelverton’s Rep. 45: 1 San. 285, note 6: 2 Strange, 1110: 5 East, 142: 2 Blk. Rep. 1300.

But it being proposed to enter a remittitur for the excess, and take judgment for the amount of the damages laid, we can perceive no reason why this may not be done. On the coming in of the verdict, this was a right the plaintiff might have exercised, and then a judgment for the damages laid in the writ would have followed; or the judge might have rendered judgment for the damages laid in the declaration, as in the case in 2 Yerger’s Reports, 71. As it is our duty to give such judgment as the court below might legally have given, to reach the merits, no reason is perceived why this measure of justice should be withheld from the plaintiff, if willing to accept it. The remittitur having been entered in this case, and because if the judgment had been entered correctly below, interest would have accrued, that interest must be allowed here upon the sum demanded in the declaration from the time of rendering the same below.

Judgment accordingly.  