
    Varnon vs. Moore.
    Krror to th.fe Harrison Circuit; John Trimble, Judge.
    Dcnn.
    Case 82.
    December 13.
    
      Error, Amendments, Interest, Construction.
    
    Err()r wp] lie to an or, der amending a •*“ gmen '
    Judgment ^sequent * term, so as to chango the commcnce-m0nt of iu-terest, where mGrju by— Arg.
   Opinion of the Court, by

Ch. J. Borras.

THIS was an action of debt, in the Harrison circuit court, on a note hearing date the'QOth of March 1816, for four hundred dollars in Kentucky currency, payable on the 25th of December 1818, with a proviso that interest should be paid from the 25lh of December 1816, if possession should be given to the defendant, of the land and improvements, and half the fruit of the farm, the then present year 181G.

At the March term 1819, judgment was entered by default, for four hundred dollars, with interest /rom the 25th of December 1818, the time when the note was payable; and after several intervening terms, on the motion of the plaintiff, an order was made, amending the judgment, so as to make it bear interest from the 25fh of December 1816.

Where a note contains a stipulation ttbat it shall hear interest from a given day prior to its maturity, if possession should be given the drawee, of the land and improvements, and half of the fruit of the farm, the then present year, to recover interest, it must appear the land, and improvements, ' and half the fruit, were delivered to the drawee within that year.

That, in the if6 is^averíecl the land and improve-delivereefto the defend’t on the —day not~«diere111 the'judgment is by default, warrant int,lckthaner the maturity of the note,

Haggin, for plaintiff.

The defendant, haying taken an exception thereto, has brought this writ of error to the order amending the original judgment.

That the amendment was improper, we can have.no, doubt. The amendment might have been permissible, ifthere. had been in the record any thing by which to amend; b.ut there is nothing in the record by which it could be done.

To entitle the plaintiff to interest from the 25th of December 1816, he. should have shown that the possession of the farm and improvements, and half the fruit; of the farm, had been delivered to the defendant in 1816; but (his does not appear, from the record, to have been dóne.

There is, in the declaration, an averment that possession was given to him on the — ■—day of — -and. as the judgment was taken by default, wc. ought, perhaps, to infer that possession had been given some time before the commencement of the. suit; but we cannot be justified in making an inference that it was given in the year 1816, according to the. condition upon which alone th^ interest was to commence from the 25th of December 1816.

It is probable, that the "cireuit court interpreted the. proviso as not fixing anytime for delivering, the possession, and understood the expression, “the present year 1816,” as descriptive of the year’s fruit, half ©f which, the defendant was t© have.

But we cannot admit this to be the correct inte.rpre-^at‘on* it *s highly probable, that the money for which the note was given, was in part at leastj if "n.ot the en-' tire consideration of the farm;, and, most certainly, the. enj°3'ment of the farm, was the consideration for the stipulation that the interest should, commence earlier, than the time the principal, was payable; and. the itw ^erence> therefore, is strong, that it was intended by. the parlies that the enjoyment, of the farm and the commencement of the interest should be concurrent g an(] this inference is, we think, in strict "conformity to' the literal import of the proviso. " "

The order amending the original judgment must be reversed with costs.  