¶1delivered the opinion of the Court:
¶2This was an action of debt brought by Hamilton, a commissioner of school lands, against Wright and Clark. The summons was only served on Wright, who suffered the judgment to go by default. The defendants in the note sued on, stipulated to pay ten per cent, interest. On the assessment of damages by the clerk, the plaintiff moved the Court to instruct the clerk that the plaintiff was entitled to recover twenty per cent, on the principal, and on the interest due—which instruction the Court refused to give,—and which refusal is assigned by Hamilton as error.
¶3The declaration is in the usual form of debt, and contains no claim for twenty per cent, damages, in case of failure to pay either principal or interest. The instructions were properly refused. The twenty per cent, is given as a penalty, and it cannot be recovered unless the plaintiff claims it in his declaration.
¶4The judgment is therefore affirmed,—and the defendant in error is entitled to the costs of this Court.
¶5Judgment affirmed.
¶6Note. See Pearsons v. Hamilton, Ante 415.