In Leigh v. The State Bank, at the last term, it was held, that to authorize a recovery of thirty per cent, damages upon a dishonored bill, purchased under the first section of the act of 1843, it must be shown upon the record, that the bill is included in the class upon which such damages are given. The judgment in that case was by default, and this court remarked that it had been settled by many previous adjudications, “ that every fact must be shown upon the record to have been proved, which was necessary to establish the liability of the defendant to the judgment as rendered.”
*186It does not appear from the notice, that the bill upon which the motion was made, was purchased pursuant to' the provisions of the statute referred to, which entitle the bank to thirty per cent, damages, upon its being dishonored for nonacceptance, or non-payment; unless the statement that a judgment would be moved for, to recover that amount, can be considered as equivalent to such an averment. However this may be, we will not stop to inquire. The notice described the bill correctly, and is certainly sufficient upon due proof, to authorize the plaintiff to recover at least the amount of the bill, with Jiveper cent, damages, and interest — this being the lowest rate of damages prescribed by the act, which áre recoverable upon a dishonored bill. It follows then, that as the plaintiff might have obtained a judgment upon his bilí, though for less damages than he claimed, the demurrer to the notice was rightly overruled.
In Smith, et al. v. The Branch Bank at Mobile, 5 Ala. Rep. 26, it is said, the result of all the cases in this court, where judgments had been rendered on motion, is, that when the judgment is by default, it must appear by the-judgment, that thfe defendant had the notice which the law requires, and that the facts wfere proved which gives thfe court jurisdiction, arid show the liability of the defendant for the .debt, or penalty. If the defendant appear, it will be evidence of notice, arid if an issue is made up and submitted to' a jury, it is then like ririy other'cause, commenced in the ordiriary mode/except that it must appear upon the record, that the co'tirt had jurisdiction to entertain the motion. [See Curry v. The Bank of Mobile, 8 Porter’s Rep. 360.] Here the judgment entry directly 'sets forth the facts which are essential to the exercise of the summary jurisdiction. . .
If the damages assessed are more than the plaintiff was entitled to recover, the defendants should have moved a new trial in the circuit court, and cannot alledge on error, that the verdict and judgment are for a sum greater than the legal liability sought to be enforced, and -that the liability will not support the recovery. When a judgment by default is rendered for more damages upon a dishonored bill, or more interest upon a note or other writing than the law allows, it might be corrected on motion in the primary court, or here, *187at the cost of the plaintiff in error. But it was decided by our predecessors, that where the damages or interest were assessed by a jury in such cases, the defendants’ remedy was by motion for a new trial, and a judgment rendered on such a verdict, would not be reversed on error. To this decision we have repeatedly done homage, and are still inclined to follow it — it is decisive of the case at bar, and the judgment of the circuit court is therefore affirmed.