Hamer v. Rigby , 65 Miss. 41 ( 1887 )

Campbell, J.,

delivered the opinion of the court.

The law is not now as it was when Gale v. Lancaster, 44 Miss. 413, was decided. Now the note ivhen filed with the declaration is part of the record. Code, § 1540. By the express terms of the 'note it was to bear ten per cent, interest “until maturity,” and it ceased to bear that rate at maturity.

Only by a new promise continuing the obligation to pay ten per cent, interest after maturity could a right to that rate exist. Such • a new promise could not have been availed of under the declaration, and it cannot, therefore, be assumed, that there was any such evidence, and without it the verdict is wrong. If ten per cent, interest after maturity had been declared for, we would have assumed that there was evidence to sustain the demand, but the note is. declared on according to its tenor and effect. The statute, § 1727 of the Code, in providing that a verdict shall cure the omission of “the averment of any matter without which the jury ought not to have given such verdict, must be limited to averments necessary to make out the cause of action attempted to be set out in the declaration, and cannot be extended to embrace a new and distinct cause of action, even though connected in some way with that declared on. Its purpose is to help out an imperfect statement of a cause of action, and not to introduce a distinct and independent one.

Reversed.