Clay v. Drake , 1 Minor 164 ( 1823 )

JUDGE Minor

delivered the opinion of the Court.

In this case it is assigned as Error, that the declaration does not aver that the amount due had not been paid by the co-pbligor of Clay. This averment was not necessary. If Clay believed that such was the fact, he could have availed himself of it by plea. (Miller against Sneads, ante, p. 31.) It is also assigned as Eírór, that the Circuit Court rendered judgment for more than the plaintiff by his own shewing was entitled to recover. The declaration demands $90TW, with interest thereon, at the rate of 30 per cent, per :an-num. It describes an obligation.of Clay and Trigg, to pay $90Ty<¡-, due twelve months after date, not averring or shewing that the obligors by the Bond stipulated for any specific rate of interest. The Circuit Court, on overruling the defendant’s demurrer, rendered judgment for $90Ty0 Debt and $70 Damages : (being the interest at the rate of 30 per cent, per annum.) In the contract, as it appears on the Record, no specific rate of interest is expressed. For this cause the judgment of the Circuit Court must be reversed, and judgment rendered here for the principal and interest thereon, at the rate of 8 per cent, pet annum. (Laws Ala. 443, Ch. 3.)