#### Michael Jones, Plaintiff in Error, v. Lloyd, Serrill and Oakford, Defendants in Error.

" ERROR TO GALLATIN.

A judgment in damages, where the action is in debt, is erroneous, and upon a verdict rendered for eight hundred dollars in damages where the action is debt, no judgment can be rendered.

In such case the judgment ought to have been for the amount of the debt found to be due, and the damages sustained, which damages would be the amount o f interest on the sum found by the jury as the debt.

Opinion of the Court by

Justice Smith.

This is an action of debt on a sealed negotiable note, assigned to the defendants in error. The declaration sets forth the amount of the note as the debt due, and alleges that the plaintiffs sustained damage, by the non-payment thereof, to fifty dollars.

The defendant plead several pleas, which it is not necessary to enumerate. Issues of fact were made up, the cause tried, and a verdict rendered for the plaintiffs, for eight hundred dollars and fifty cents, without specifying whether in debt, or damages. Upon this verdict, a judgment was entered up as follows: “ It is therefore considered by the court, that the plaintiffs recover against the said defendant, eight hundred dollars and fifty cents damages, by the jurors aforesaid, in their verdict aforesaid, assessed, and also their costs,” &c. Under the sixth assignment of errors, which is the only one it is considered necessary to notice, it is contended, the action being in debt, and the judgment in damages, that the judgment is improper, and wholly irregular. We think the judgment to be evidently erroneous. It ought to have been for the amount of the debt found to be due, and the damages sustained, which damages would have been the amount of interest on the sum found as the debt by the jury. (1)

*226The verdict of the jury is therefore an improper finding and a judgment is incapable of being rendered thereon.

The plaintiff should, at thé trial, have required a correction of the verdict, and had the same put into form. Even then, the plaintiffs could not have recovered the whole amount found by the jury, that amount exceeding the amount of the note declared on, and the damages, as laid in the declaration. It is certain that the plaintiffs can not recover more than their declaration covers, for this would be to award him more than he asks himself. In cases of torts, where a jury have found more than the amount of damages laid, the courts have refused, on application, to permit the plaintiff to enlarge the amount of damages laid in his declaration, so as to avail himself of the verdict, and enter judgment thereon. Such has been the decision of the supreme court of New York. The practice is, where the amount found by the verdict exceeds the amount in the declaration, to enter a remittitur for the excess. This not having been done, and the judgment being in damages, is clearly erroneous. The remaining question is, whether this court has the power to afford the means of correcting it ? It has been the practice, in the courts of Kentucky, in cases very analogous to the present, for the party desirous of having the error amended when the proceedings are in the appellate court, to suggest a diminution of the record, and ask for a certiorari to the circuit court, to certify the diminution, and apply to the circuit court for leave to amend the proceedings in the mean time, so that, when the certiorari is returned, the error will appear to have been corrected in the court below. In this case, however, such a course, if it had ever been pursued, would have been unavailing, as it is not perceived how the circuit court could have either amended the verdict, or determined what portions of it were the debt, and what the damages, or what sum should have been relinquished. The error being then incurable, the judgment must, for this cause, be reversed, and the cause remanded to the circuit court of Gallatin county, with directions to award a venire de novo. The plaintiffs recover their costs.

Judgment reversed.

(1)

Affirmed in Guild v. Johnson, 1 Scam., 405. Jackson v. Haskell, 2 Scam., 565. Pattison v. Hood, 3 Scam., 152. Heyl v. Stapp et al., id., 95. Frazier v. Laughlin, 1 Gilm., 358. Wilmans v. Bank of Illinois, id., 671. Mager v. Hutchinson, 2 Gilm., 266. Wilcoxon v. Roby, 3 Gilm., 476. O’Conner v. Mullen, 11 Ill., 59. Knox v. Breed, 12 Ill., 61. March v. Wright, 14 Ill., 248. Bowman v. Bartley, 21 Ill., 30.

In debt on a penal bond, the jury should find the amount of the bond as debt, and the damages separately. The court then renders the judgment for the amount of the debt, to be discharged on the payment of the damages. Frazier v. Laughlin, 1 Gilm., 358. Toles v. Cole, 11 Ill., 563.

In an action of debt, where the finding is only for a part of the debt due, upon which a judgment is rendered, it is not necessary to specify which part is debt and which is damages; it is all debt. Lucas v. Farrington, 21 Ill., 31.

Where it can be ascertained from the record what part is debt and what damages, the supreme court will enter the proper judgment. Wilmans v. Bank of Illinois, 1 Gilm., 671.