Hamer v. Rigby

Citations

• 65 Miss. 41

Syllabus

<p>1.Practice. Filing note with declaration. Effect of.</p> <p>A promissory note sued on and filed with the declaration, thereby becomes a part of the record by virtue of \\ 1540, Code of 1880. Gale v. Lancaster, 44 Miss. 413, distinguished.</p> <p>2. Promissory Note. Interest fixed, to maturity of note. Effect.</p> <p>A promissory note which stipulates for ten per cent, interest per annum “ until ■ maturity,” will only draw the statutory rate after maturity.</p> <p>3. Same. Practice. Effect of verdict to cure errors. Case in judgment.</p> <p>And where such a note is declared on, and a verdict and judgment rendered for ten per cent, per annum after, as well as before, maturity, it cannot be assumed to support such verdict, that there was evidence tending to show a new promise to pay such rate after maturity, in the absence of an allegation in the declaration of such new promise.</p> <p>4.Same. Practice. Effect of verdict to cure defective averments in declaration. Section 1727, Code of 1880, considered.</p> <p>The statute, § 1727, Code of 1880, in providing that a verdict shall cure the omission of “the averment of any matter without which the jury ought not to have given such verdict,” must be limited to averments necessary to make out the cause of action attempted to be set out in the declaration, and cannot be extended to embrace a new and distinct cause of action, even though connected in some way with that declared on.</p>