In а late case, I had occasion to say, that the writ was part of the record for the purpose of amending by, if necessary: and I think that this is one of thе cases where the declaration may be amended by the writ; and, consequently, that $ 500 dollars are to be considered as the damages demanded by the plaintiff.
But the jury have gone beyond that sum, and the plaintiff, instead of releasing the excess, as he might hаve done at any time during the term, has obtained judgment for the whole. This, I conceive to be an incurable error; for it is a known rule of law, that, in an action sоunding merely in damages, a plaintiff cannot recover more damages than he demands, although he may less, 2 Burr. 906. 2 Wash. 212: and, according to the judgment of this court, a few days past, in Field’s ex’ors v. Freeland & Lenox, (ante. 12,) the verdict cannot now be. amended, nor the judgment corrected in the district court, the term being past.
The question seems to be, What course ought the district court to have pursued if the excess had been discovered, and the plaintiff had refused to release that excess. In my judgment, they could nоt have pared down the verdict to the measure of damages in the declaration, without the plaintiff’s consent: neither could they have given judgment for mоre than the plaintiff himself demanded. For it has been decided, in this court, that the district court is bound to look into the whole record, before they proceed to give judgment:
But, whatever difficulty I might feel in the case as a judge of the district court, for the reasons I have stated, I have no hesitation in saying that the court erred in rendering judgment for damages beyond those claimed by the plaintiff. And since this court must now pronounce some judgment as a future direction to the district court, and it being now too late, I apprеhend, for the plaintiff to release the surplus, either in this court, or in the district court, we must, of necessity, award a new trial. Whatever may be the event, the plaintiff can have no ground of complaint, since he might have laid his damages to the full amount of his own estimate, if he had released the surplus before the judgment was rendered upon the verdict, as he might have done at any time during the term.
I cannot, for a moment, doubt that the district court would, on motion, have been аuthorized to permit the plaintiff to amend his declaration at the trial, by inserting the damages contained in the writ: nor that, notwithstanding such amendment was not actually made, the effect of the statute of jeofails is, to consider it as made, by overlooking the defect. This point, I understand to have been entirely decided in the сase of Stephens v. White, 2 Wash.
I consider the effect of the statute, after a verdict, to be to incorporate into the declaration all dates, sums, &c. contained in the writ, and mistaken, or omitted in the declaration. If it be said, that a construction, curing this omission of dаmages in the declaration, goes further than the English decisions on this subject, I answer, (without stopping to en-quire whether this be the case or not,) 1. That the general scope of our act seems entirely to justify it. 2. That our act is much stronger, upon the subject in question, than the English statute of the 21st of James I. ch. 13, (from which it seems to havе been taken,) in the point stated by me in the case of Stephens v. White.
There is no doubt, that a judgment given for more damages than are stated in the declaration, (or in the writ, when there is a verdict,) is erroneous: and we are now called on, after reversing the judgment in question, to say what judgment the district court ought to have given, insteаd of the one they did give ? Some strong passages in Bacon’s Abridgment, induced me to enquire, whether the court could not, (without any act of the plaintiff in moving to enter a remittitur,) give judgment to the amount stated in the declaration, having no respect for the residue. But the cases referred to in support of this position, do not seem tо warrant it.
If then, the court had not' this power, what judgment ought it to have rendered ?
This verdict for double the sum stated in the proceedings which were before the jury, аnd double the measure of
The plaintiff cannot recover more damages than he lays in his declаration; but, as that may be amended by the writ, it ought to be considered as done : and then the case falls within the general rule. I concur, therefore, that the judgment should be reversed, and a new trial awarded.
As the jury found more damages than were laid in the writ, which should be considered as part of the declaration, a new trial ought to have been awarded. The judgment is, therefore, to be reversed; and the following entered instead of it:
*90 “ The court is of opinion that the sаid judgment is erroneous in this, That the jury having, by their verdict given in this cause, found for the said William one thousand dollars damages, and the damages laid in the writ being only five hundred dollars, with whiсh sum the blank left for damages in the declaration, is considered as filled up and amended, the verdict ought to have been set aside, and a new trial awarded, as the said William, did not release the excess during the term of that court. Therefore it is considered, that the said judgment be reversed and annulled, and that the appellant recover against the appellee his costs by him expended in the prosecution of his writ aforesaid here : and it is ordered that the jurors’ verdict be set aside, and that a new trial be had in the cause.”