Bank of Louisiana v. Watson , 4 Ark. 518 ( 1842 )

By the Court,

Dickinson, J.

The court below decided right, in sustaining the demurrer to the declaration. ' The suit was instituted upon a foreign judgment, which is composed of sundry items. The amount of them is set out, with the interest and cost accruing thereon. The interest, in more instances than one, exceeds six per cent, per annum, and the breach in the declaration is, that the judgment demanded remains wholly unsatisfied.

The inquiry now is, can the plaintiff, under such a breach, recover more interest than six per cent, per annum? It has been repeatedly ruled in this court, that a party plaintiff cannot recover more than six per cent, per annum, unless he avers the non-payment of the interest, when the contract is for a greater rale. Here it is certain that there is no such averment. It is the amount of the judgment demanded, which it is averred has not been paid. Now, the non-payment of the interest that arises upon this judgment, is not negatived in the breach. The setting out of the interest, in the declaration, for more than six per cent, per annum, is precisely similar to showing the same thing, by profert of a note, where the rate exceeds that amount. This being the case, the question falls within the principle before stated.

Judgment affirmed.