¶1The Opinion of the Court was delivered by
¶2Debt on an appeal bond for $200. The condition of the bond was to pay whatever judgment might be rendered upon the trial or dismissal of the appeal. The declaration averred that upon trial of the appeal, the Court rendered a judgment for Sweeney for $96-72 and cost. The breach assigned is the non-payment of this judgment, and concludes to his damage, $50. Service was made upon Thomas only, who pleaded non estfactum. Verdict for the plaintiff for $200 debt, and $116-03 damages. The Court below rendered judgment for the debt, to be satisfied upon payment of the damages assessed by the jury.
¶3This is assigned as error.
¶4The general rule, that the plaintiff can recover no more damages than are laid in his declaration, is well settled. Jones v. Lloyd, Bre. 174; 1 Chitty’s Pl. 172; Graham’s Pr. 323-4; 2 Tidd’s Pr. 896; Pickwood v. Wright, 1 H. Black. 642; Fournier v. Faggott, 3 Scam. 347.
¶5In this last case, the rule was applied to the assessment of damages on debt on an appeal bond, and is in point in this case.
¶6It is also a well settled rule, that the plaintiff may remit the excess, and so cure the verdict, and take judgment for the amount laid in his declaration.
¶7In the case in 1 H. Black. 642, this was allowed after writ of error brought to reverse for this cause, on payment of cost on the writ of error.
¶8The party may, upon leave in the Court below, amend his declaration, and then take judgment for his damages, unless a new trial should be indispensable to do justice to the defendant by reason of such amendment.
¶9It it also assigned for error, that the Court below rendered a judgment against Paul Stephens, who had not been served with process, nor entered his appearance. But upon inspection of the judgment, we find it entered against the “defendant.” This can only he applied to the “defendant” in Court. In this there is no error. The judgment will be reversed at the cost of the defendant, and the cause remanded with leave to the defendant to move for leave to amend the declaration. -
¶10Judgmtnt reversed.
¶11Wilson, C. X, and Justices Lockwood and Young did not hear the.argument.