#### Francis Prince, Plaintiff in Error, v. Levi Lamb, Defendant in Error.

ERROR TO GALLATIN.

Variances between the writ and declaration, can only be taken advantage of by plea in abatement—they are not reached by a general demurrer, nor can they be assigned for error.

It is not essential to entitle a party to recover interest on a judgment rendered in another state and sued on here, that the declaration should allege that by the laws of the state where the judgment was rendered, interest is recoverable.

A judgment rendered for “ interest on the amount,” without stating what the amount is, by way of damages, is uncertain, and therefore erroneous.

Where this court have the power to render such a judgment as the court below ought to have rendered, it will do so, without sending the parties back for that purpose.

This was an action of debt in the Gallatin circuit court, brought on a record of a judgment obtained in the state of Kentucky, against Prince. The first declaration and writ demanded a debt of 206 dollars and 50 cents, and 150 dollars damages. The alias writ is for the same demand, but the amended declaration demands a debt of 206 dollars and 50 cents, and interest from the 25th of December, 1820. The *379defendant below, the plaintiff in error here, pleaded nul tiel record and payment. The court, by consent, tried both issues, and gave judgment for the plaintiff below, for 206 dollars and 50 cents, with interest on 200 dollars, from the 25th day of December, 1820, until paid. The points relied on by the plaintiff in error, are fully stated in the opinion of the court.

Opinion of the Court by

Justice Smith.

The points relied on for a reversal of the judgment of the circuit court, are :

1. That the judgment was for a greater amount than the sum named in the writ, or demanded in the declaration.

2. That in the absence of an averment that by the laws of Kentucky, judgments bear interest, the court below could not give judgment for the interest specified in the Kentucky judgment.

3. That the judgment is uncertain, being for a constantly accruing interest on a part, and silent as to another part.

4. That the court did not inquire into the value of Kentucky bank paper.

5. That the Kentucky judgment is not correctly stated, in the declaration, in respect to the amount of costs, and should have been rejected on the plea of nul tiel record.

I shall consider the points raised as they are stated. Under the first, it is contended that the judgment was for a greater amount than was specified in the writ and declaration, and that therefore the judgment is erroneous. The variance, if there be one, between the writ and declaration, should have been taken advantage of before plea pleaded. It is now too late to urge that, as error, here. Variances between the writ and declaration are matters pleadable in abatement only, and can not be taken advantage of, even upon a general demurrer. Duval et al. v. Craig, 2 Wheat., 45. Garland v. Chattel, 12 Johns. Rep., 430. Chirac et al. v. Rencher, 11 Wheat., 280. (1)

On the second point it is deemed only necessary to remark, that it is not essential to entitle k party to recover interest on a judgment, that it should be shown, in the declaration, that by the laws of the state where the judgment is recovered, interest is allowed thereon by statute.

The judgment is a debt, and may be assimilated to a contract to pay a sum certain with interest. Such interest is recoverable as a part of the contract, in the present case, by way of damages for the detention of the debt, the interest *380being a part of the judgment. Interest is recoverable on an ordinary judgment which contains in itself no award thereof, by way of damages.

The fourth objection, that the court did not inquire into the value of Kentucky paper, is readily disposed of. There was no obligation on the plaintiff to receive the Kentucky bank paper, in conformity with the indorsement made on the execution, except under it. The defendant having neglected to avail himself of that offer at the proper time, can .not now avail himself of it. The judgment is for dollars, and the court could only recognize by that judgment the standard value of the legal currency of the United States, without discount or abatement of value.

The variance between the declaration and the record, produced as evidence to rebut the plea of nul tiel record, will be considered. The declaration alleges that the defendant is indebted unto the plaintiff in the sum of 206 dollars and 50 cents, and also interest thereon, to be computed after the rate of six per centum per annum, from the 25th day of December, 1820. The judgment adduced as evidence, is for 200 dollars debt, with interest thereon, to be computed after the rate of six per cent, per annum, from the 25th day of December, 1820, until paid, and also six dollars and fifty cents for costs. The question of variance is, then, whether the six dollars and fifty cents are to be considered as a part of the debt or not. This case is distinguishable from the case of Giles v. Shaw, * in this, that here the record of the proceedings show that the six dollars and fifty cents which are the costs, are a part of the record itself, duly certified under the hand of the clerk to be so, the award of the execution and the execution itself being inserted in, and made a part of the record, in which the costs are recited to have been the actual costs awarded to the plaintiff. In the case of Giles v. Shaw, there were not so shown, nor was there any evidence that they formed any portion of the record, and were, for that reason, considered as entirely dehors the record. It is then manifest, that the record produced in evidence negatives the plea of nul tiel record, and the judgment for the plaintiff on the plea was therefore correctly given.

The objection that the judgment is uncertain, being for interest on the amount, without rendering that amount into a precise sum in damages, is well taken. In this particular, the judgment is manifestly erroneous for want of certainty.

*381Eddy, for plaintiff in error.

W. Thomas and Rowan, for defendant in error.

The judgment must, therefore, be reversed in that portion of it which gives the interest on the amount of the original judgment in Kentucky. But still, as the court here have the power to render such judgment as the court below ought to have rendered, and as the amount of interest is readily computable, the error is. to be remedied without sending the parties back for such purpose. The amount of damages can be ascertained by the clerk of this court, which should be allowed for the interest, and the judgment is to be entered in conformity with this view of that part of the case, at the costs of the defendant in error. (a), (2)

(1)

See note 1 to Rust v. Frothingham, ante, 331.

*

Ante, p. 125.

(a)

A narr. in debt for 860l. 12s. Id., founded on a decree in chancery for that sum, with interest from a certain day, to the day of rendering the decree, is fatally defective. 1 Cranch, 259.

(2)

Affirmed in Wilmans v. Bank of Illinois, 1 Gilm., 667.