
    Dinsmore against Austill, Administrator.
    DECEMBER, 1822.
    1. After judgment by nil dicit, advantage cannot be taken of omission
    2d, judgment for inerest from a day sufficiently certain.
    3d, Judgment for more than dc. claration claims is error.
    
      JEREMIAH AUSTILL, administrator of David Files, de-dared in debt against Silas Dinsmore, on a note under seal, dated 20th day of January 1816, for $2357TW> payable to C. Stump one day after date, and assigned to his intestate, The damages were laid at one hundred dollars. There was no proferí of the note, or of the letters of administration. Dinsmore plead nil debit, on which issue was joined.
    
    The Record of the Circuit Court shews, that on the 30th day of October 1821, Dinsmore withdrew his plea; and it was thereupon “ considei’ed that the said plaintiff do recover “ against the said defendant, the sum of two thousand three “ hundred and fifty-seven dollai’s and five cents for his debt “ aforesaid, together with the interest from the 17th day of “ January, eighteen hundred and sixteen, for his damages “ aforesaid,” &c. Dinsmore prosecuted a writ of Error to this Court. The material points in the assignments of Errors appear in the
   Opinion of the Court delivered by

Judge Crenshaw.

As to the omission of proferí of the writing obligatory, and of the letters of administration, the defendant in the Court below, after having pleaded, withdrew his plea, and suffered judgment to pass by nil dicit, and has thereby waived any advantage which ho might have claimed from the omission. There is no question but the objection would have been good on special demurrer; and it is equally clear that the defendant may, if he tl finks proper, dispense with the proferí of the writing declared on, and of the plaintiff’s authority to sue; and by his plea to the merits, admit both.— Interest accruing by operation of law has ever been considered in the nature of damages. The interest expressed in the judgment must therefore be considered the same as damages. The rate of interest on the debt is fixed by law. The Record shews the day from which the interest is to be calculated, and the day when the judgment was rendered. The law directs that the interest shall be computed up to the time of judgment. -That is considered as certain which may be made so by proper reference.. Ey reference to the law and to the date of the judgment, the amount of tho interest can be ascertained with certainty.

But the judgment is for a greater amount than is claimed in the declaration. Tho judgment is for interest from the I7th day of January, 1816. From the declaration it appears that the debt was not due until the 21st day of Ja-nu-ary 1816. For this Error the judgment must be reversed, and the cause remanded. In this opinion the Court are unani-IXIOUS.

Gaines and Lyon for- Plaintiff.

Patton for Defendant in Error.  