From the report of this case at the head of this opinion, it is manifest that the justice of the case, under the law applied to the facts, has not been reached, and that the several exceptions and assignments of error are sufficiently specified to authorize a ruling on the vital point involved, though no motion for a new trial was made below;
It will be seen that, though from an account stated in 1880, as well as from various letters of defendant to plaintiff’s testatrix, the rate of interest agreed upon and calculated between the parties up to 1880 was twelve per cent., the verdict directed by the court allows interest only *208at seven per cent, for that time; that no plea of usury was "before the auditor or the court, and none appears to have been filed or considered and passed upon; and therefore such direction and refusal to allow the interest at twelve per cent, up to the date of tjie account stated, are clear error. p
We think that the basis upon which the auditor made his calculation in his first report is correct. The account rendered in 1880 is the time from which the calculation should be made, and the sum reached as due by that report as made first by the auditor is the true indebtedness of the defendant to the estate of Mrs. Renfroe; If any clear and palpable mistake had been made in that account as stated, any omission of items clearly and satisfactorily proved, to the same extent and with the same certainty that courts of equity require in order to correct mistakes in their forum, then equity would correct them here, and under our statute, courts of law would do the same thing; but in the absence of pleadings to that effect, and of clear proof to the auditor of such mistake, or to the jury on exceptions to the auditor’s report, that account stated must stand. Certainly when the rate of interest was fixed and solemnly recognized by the agent for the use of the principal’s money at twelve per cent., and her account stated to that effect with and by him, then to change it to seven per cent, with no plea or proof of usury or of facts bringing the case within the laws against usury, is. not to correct •a mistake in the legal or equitable sense of a proceeding therefor. The auditor was right not to consider the same under the pleadings and facts before him.
In a word, the direction of the court to the jury to return the verdict based upon the seven per cent calculation from the time the fund was first received by the defendant, in our judgment, was error, and a newt-rial is awarded on that ground. We see no other material error not included in this point.
Judgment reversed.