Potter v. Prescott , 3 Miss. 686 ( 1838 )

Mr. Justice Pray

delivered the opinion of the court.

This was an action in the court below of trespass on the case, upon two promissory notes, and the damages laid in' the declaration are 1000 dollars.

The defendant pleaded non assumpsit, upon which there was an issue to the country.

The issue was tried and a verdict found for the plaintiff for the sum of 1622 dollars and 6 cents, upon which a final judgment was rendered.

The error assigned is the following: “It appears from the record, that the action below was assumpsit, and the verdict and judgment is for a larger amount of damages than that laid in the plaintiff’s declaration.”

This is undoubtedly error. The party has estimated his own damages, and he cannot recover more than he claims.

We have examined the authorities cited by the defendant’s counsel. The adjudications of the court of errors in New York are inapplicable. The jurisdiction of that court is merely appellate, and consequently there must have been some question actually presented to the court below, and a decision had thereon, before the party can appeal, and that question only can be examined in the court of errors.

This court is bound to correct all errors in the proceedings of inferior tribunals which are brought before it, whether they relate to decisions, either actually or nominally made by the court below.

In the case of Poindexter v. Turner, Walker, 349, no damages were laid in the declaration, and consequently the error might have been reached by a demurrer. The defect was therefore cured by the statute. The present case is not within its provisions.

The judgment must therefore be reversed and the cause remanded.