Butler v. Limerick , 1 Minor 115 ( 1823 )

Judge Saffvld

delivered the opinion of the Court.

According to the modern doctrine, a plaintiff in Debt, (if there be no variance between the written contract and its description in i&e declaration) may recover less than he ■declared for. See 2 Lord Ray. Ingledon against Cripps. But in Debt on a specialty or note, he must, in his writ and declaration, demand the precise sum, secured by the instrument, although by reason of partial payment, set off, &c. his recovery may be for less.

-In this case we are unanimously of opinion, that by the express terms of the Note declared on, $1000 only was the Debt; and that the circumstance' of part of the interest having .accrued before the maturity of the Note, does not change its nature ; to regard this interest as part of the principal Debt, and adjudge' interest on the $1080 from the time the Note became due, would allow compound interest, which would be not only' contrary to law, but to the evident intention of the parties. The Note was for #1000 and interest thereon, and not for the aggregate' sum of #1080.'

_ The effect of the judgment by nihil dicit, though not insisted on in the argument, has been considered, and a majority of- the Court are of opinion that it does not cure the Error. A judgment by nihil dicit would amount to a waiver of advantage as to matters of form. A. judgment by-confession is expressly declared by Statute to amount to a release of Errors. Had it been the intention of the Legislature to give the same effect to a judgment by default, non sum informatus, or nihil dicit, it is to be presumed that such judgments would have been expressed in, and not by implication excluded from, this enactment.

We cannot reverse, and’ render judgment for the correct amount, for the Error commenced with the Writ. The judgment corresponds with the Writ; and if the defendant, by withdrawing his plea, waived the Error in the Writ, it would follow that he waived it in the judgment also.

Let the judgment be reversed.