Opinion
(Spring Term, 1804.)
When the verdict is for more than the damages laid in the writ, the variance is fatal on a writ of error, unless the plaintiff will enter a remittitur for the surplus. And leave will be given him to do so upon paying the costs of the writ of error.
Writ of error to Morgan Superior Court, to reverse a judgment obtained in an action of covenant, by the present defendant against the plaintiff in error, in Burke County Court. The only error of consequence assigned was. "That there is a material variance between the verdict of the jury and the writ; the verdict and judgment being for £ 102 5 0, besides the costs of suit, and the damages in the writ being laid at £ 50 only."
I think the error assigned in the proceeding below is such that the judgment thereupon given must be reversed, unless the defendant in error think proper to enter a remission of the excess above the sum laid in the writ, and also to pay the costs of the writ of error. 1 H. Bl. Rep., 643.
By the Court: Leave is given the plaintiff below to amend, by remitting all the damages in the verdict except the sum mentioned in the writ, on paying costs of the writ of error; otherwise, the judgment to be reversed in toto, with costs.
Cited: Boyett v. Vaughan, 79 N.C. 535.
(630)