
    
      W. C. Gatewood vs. Levi J. Moses.
    
    Appellant not permitted to raise and discuss a legal ground expressly waived on the circuit.
    Assumpsit on a promise to pay the amount of a judgment from which defendanthad been discharged under the insolvent debtors’s Act: — Held, that the true measure of damages was the amount of the debt, interest and costs, on the day of the entry of the judgment, with interest on the amount from the day of the entry to the day of the trial.
    The circuit Judge may send the jury back to remodel their verdict, or direct them to do so in the court room.
    
      Before Waedlaw, J. at Charleston, May Term, 1851.
    Assumpsit upon a promise to pay the amount of a judgment, from which the defendant had been discharged, by his discharge under the insolvent debtors’s Act.
    There were four counts in the declaration.
    The first, after setting out the judgment and discharge, alleged that, in consideration thereof, the defendant had promised to pay the amount of the judgment whenever he should be thereunto afterwards requested.
    The second, upon like consideration, alleged a promise to pay the judgment out of the money to be received by defendant, for a certain prize in a lottery, when that should be paid to him, and that it was paid to him.
    The third, stating the prize to be payable forty days after the drawing of the lottery, alleged that the defendant promised to pay the judgment, upon request, if plaintiff would guaranty the payment of the prize, and that plaintiff did guaranty, and the prize was paid.
    The fourth was like the third, except that the promise was alleged to be, to pay when the prize was paid.
    It was proved, to the satisfaction of the jury, that in 1840, one Salaignac, for the use of the plaintiff, recovered a judgment against the defendant for $544 15, with interest on $145, besides costs, which judgment was entered 6th June, 1840, and fi. fa. lodged thereupon ; that defendant was arrested, in 1843, under a ca. sa. at the suit of the Union Bank, and was discharged in April, 1844, under the insolvent debtors’s Act; that in August, 1848, defendant drew a prize of $7,650 in a lottery of the managers of which, Maury & Co. of Baltimore, plaintiff was agent; that the" ticket was payable at the end of forty days, and that plaintiff guaranteed the payment thereof; that defendant promised the plaintiff to pay to him the amount of the judgment out of the prize money, which he afterwards refused to do, and that the whole of the prize money was paid to the defendant.
    “The jury,” said his Honor, in his report, “having retired for consultation, returned in:o Court with this writing on the declaration — “ We find for the plaintiff.” They were instructed that they must fix the amount to be recovered by the plaintiff, which I thought ought to be the former judgment, with interest thereon, and that in fixing the amount, they must give interest on whatever sum should be ascertained to be the principal to which plaintiff was entitled. They retired again, after making some short and ineffectual effort at calculation in Court, and returned with this second writing subjoined to the former — “ For $544 15, with interest from May 15, 1840.”
    “ I remarked, that from this it did not clearly appear on what sum interest was to be calculated, and that this was neither the amount of the old note, if that was to be now taken as the debt, nor the amount of the old judgment; and that I thought the jury should ascertain the whole amount of the judgment — principal, interest and costs — on the day it was entered ; and find for the plaintiff that amount, with interest thereon, from the day of the entry. One of the counsel for plaintiff here remarked, that the plaintiff did not desire to recover interest on more than the original principal of the note. I said to the jury, that that would be more advantageous to the defendant than either the writing they bad just returned or the verdict which I thought they should find ; and as the plaintiff assented to it, they might write their verdict accordingly. The foreman said that that would be more agreeable to the jury than the finding they had returned, and he proceeded to write, at the Clerk’s desk, the verdict, finding for plaintiff “ $544 15, with interest on $445 from June 6, 1840.” My attention was much engaged by a very exciting discussion then in progress at the bar, and I do not know what consultation the foreman held with his fellow-jurors. But I know that the verdict was, in due form, read in presence of the jury, and I doubt not it was fully approved by them. I noticed that it was still probably short of the amount it should have contained, as it does not include the costs, which were in the judgment, but as the plaintiff’s counsel seemed to acquiesce, I said nothing more, and dismissed the jury.”
    The defendant appealed, and now moved for a new trial, on the grounds,
    1. Because, when the jury had come in with a general verdict for the plaimiif, and being unable, under the direction of the Court, to fix the amount of their verdict, were about to retire for consultation, his Honor, the presiding Judge, charged, and upon special enquiry of defendant’s counsel, repeated the instruction, that “ they could not find what amount they pleased, and with or without interest, but must find for the plaintiff the amount of the old judgment with interest, and that they could not find the old judgment, or any other amount, without interest.”
    2. Because, when the jury had come in again with their verdict, perfected according to the instructions of the Court, his Honor again ordered it to be altered, and the verdict was entirely re-written by the foreman, under the express direction of the Couit, and superintendance of the Clerk, without any consultation with the rest of the jury, and without being submitted to them.
    3. Because the verdict was contrary to law and evidence.
    Memminger, Campbell, for the motion.
    
      Petigru, Simons, contra.
   The opinion of the Court was delivered by

O’Neall, J.

In this case, the attempt here, under the 3d ground, to raise and discuss a legal ground expressly waived on the circuit, cannot be permitted.

There the party defendant chose to rest his case upon the inquiry in fact, did he make the promise on which the plaintiff relied 1 He cannot now be permitted to shift that inquiry and raise the question whether the promise was predicated of a sufficient consideration 1 It is true, if a matter of law be overlooked, on the circuit, or be not noticed in the grounds of appeal, the Court may, if it chooses, allow the party the benefit of it.

The other grounds relate, 1st. to the allowance of interest; and, 2d. to the remodelling of the verdict.

As to the allowance of interest, the Judge was right in saying to the jury, that they must find for the plaintiff the debt, interest and costs to the day of the entry of the judgment, with interest on this aggregate from that day to the day of the trial. This instruction corresponds with the ruling in Lambkin vs. Nance, (2 Brev. 99,) and Harrington vs. Glenn, (1 Hill, 79).

As to the remodelling the verdict by sending the jury back, or having it written according to the intention of the jury in the Court room, there is nothing wrong. The course pursued by the Judge is in exact conformity to the practice which we all pursue, and which our predecessors pursued from the earliest days of the administration of justice of which we have any knowledge.

The motion is dismissed.

Evans, Wardlaw, Frost, and Withers, JJ. concurred.

Whitner, J. absent.

Motion dismissed.  