Crabb's Executors vs. Nashville Bank, 6 Yer. 332

Peck, J. delivered the opinion of the court. On authority we are compelled to reverse this judgment, the damages found by the jury and the judgment being for more than is laid in the writ and declaration. Yelverton’s Rep. 45: 1 San. 285, note 6: 2 Strange, 1110: 5 East, 142: 2 Blk. Rep. 1300. But it being proposed to enter a remittitur for the excess, and take judgment for the amount of the damages laid, we can perceive no reason why this may not be done.

On the coming in of the verdict, this was a right the plaintiff might have exercised, and then a judgment for the damages laid in the writ would have followed; or the judge might have rendered judgment for the damages laid in the declaration, as in the case in 2 Yerger’s Reports, 71. As it is our duty to give such judgment as the court below might legally have given, to reach the merits, no reason is perceived why this measure of justice should be withheld from the plaintiff, if willing to accept it.

The remittitur having been entered in this case, and because if the judgment had been entered correctly below, interest would have accrued, that interest must be allowed here upon the sum demanded in the declaration from the time of rendering the same below. Judgment accordingly.