2 Port. 519 | Ala. | 1835
This was an action of debt, on two promissory notes for $1250 each, executed by the plaintiff in error, as security for Hance McWhorter, to Izrael Standifer, assignor of the defendant in error, bearing interest from their date, which was the 10th of November, 1821. The judgment in the Court below, was rendered on demurrer for the defendant in error, on the 3d Monday of September, 1833. The assignment of errors, are
1. The 'Court erred in sustaining the demurrer to the plea of the plaintiff in error, and,
2. That the judgment is for a larger amount of damages than is laid in the declaration.
We will proceed to the consideration of the second assignment of error, as to the excessive damages. The action was for $2500 debt, and the damages laid in the count for the detention thereof, were $2000. The judgment on the demurrer is for the debt declared for, and $2366 damages sustained by reason of its detention. By calculation, I find that the amount of damages allowed as interest, though greater than the sum laid in the count, are somewhat less, than the amount really due. The question raised by this assignment has never been decided by this Court; and when considered, as affected by our statutes, ascertaining the amount recoverable in all cases, as damages for the detention of money, and authorising its calculation, at the fixed rate of 8 per cent, per an-num, down to the rendition of judgment, may be said to be res integra.
It must be admitted, that the ancient rule of law, prohibits the recovery of more damages, than are laid in the declaration; and that this rule did apply, even to the action of debt, where damages were not the sole, or even the main object of the suit. When a rule or principle is clearly established by those sources from whence we derive our knowledge of the Common Law; as that Common Law is our rule and
In Com. Dig. 3 v. 351, citing 1 Rol. 575, 1, 10, it is said, “ in detinue, the plaintiff may recover against the garnishee more damages, than were alleged in the declaration; because he recovers for delay after' his declaration.” The'reason why there was no relaxation of the rule in the case of debt in the debit and detinue for money, was, I apprehend, that the damages for the detention, were not only mere matter of proof, but were only recoverable down to the time of commencing the action. Then, as an estimate or judgment could, in presumption of law, at least, be formed of the amount of injury or damage sustained, (for all had accrued that could be compensated,) he was held to his own declared amount; at • least, that was the ,;maximum, and no proof could be heard óf any greater. Of course, the verdict and judgment had ro foundation as for any thing beyond that point. The reason of the rule evidently was, that the party could, in the given case, form an estimate of his damage, as it all had accrued for which .he could recover, at the time of his complaint preferred; and therefore it was proper, not to allow any proof to be heard, to carry it beyond his own demand; for on'the principle of self love, it may be safely assumed, that the estimate of ones own wrongs, does not
Let the judgment be affirmed.