Troxwell v. Fugate , 3 Ky. 2 ( 1805 )

The Opinion of the Court.- — The variance between the writ and declaration, as to the sum sued for, is cured by the act of jeofails; ^* but there is error in the judgment, in the first instance, in allowing interest,^† and in the second, if allowable, in not stating the rate of interest. The instrument of writing upon which this suit is founded, having been given prior to the act prescribing the mode of calculating interest in certain cases, and for other purposes, the interest due thereon should have been found byway of damages, and not calculated by the clerk, as in case of judgments upon bonds or penal bills*

Judgment reversed.

* This dectfion, as t^thls poirft, Is fupported by feveral later dediions, and overrules rhe cafes of Fowler vs. Cowper, 1801, Pr. Dec. 71—and Scott vs. Taylor and wife, ex'rs of Leech, 1801, Pr. Dec. 113.

† See Ruffell vs. Shepherd, and Taul vs. Moore, poft.