The opinion of the court was delivered by'
Phelps, J.The error alleged in this case is, that the county court rendered judgment- for more than the amount due upon the note. If this be so, it probably originated in the misprison of the clerk in entering up judgment in the case, and admits of an easy remedy by application to that court to correct its records,- — a power which every court possesses and exercises in such cases in a summary way. A writ of error in such case is a proceeding not to be favored; and it becomes a question of some practical importance whether it lies at all.
Errors are of two kinds, viz: errors in law, and errors in fact. Writs for error in fact never lie, to draw into controversy any matter of fact litigated in the original suit, or which was put in issue by the pleadings. Error in law lies, where upon the facts apparent of record, the judgment is improper. But no writ of error lies to re-examine a question of fact depending upon the evidence in the original suit, nor to re-examine a mixed question of law and fact. Hence where the point depends upon evidence, and the inquiry is of a mixed character, a bill of exceptions is necessary to lay the foundation for a writ o'f error. And even where a bill of exceptions is allowed, and error brought, the only legitimate subject of inquiry concerns the correctness of the legal rules adopted, and the accurate application of them to the facts stated in the record. Even here, no evidence is received, nor inquiry allowed, upon evidence extraneous of the record, nor .as to the sufficiency of evidence to establish any fact, except so far as the legal tendency of the evidence is involved, or its sufficiency may be determined by abstract rules.
In. this case the error assigned is technically an error in law, and the question is, whether it is apparent upon the record before us, that the court below ought to have rendered a different judgment.
So far as the facts are conclusively determined by the pleadings in the case, they are to be taken as the basis of our decision, but so far as they depend upon evidence, which might have been the *90subject of discussion in the court below, every presumption is to be made in favor of the judgment of that court which is not positively inconsistent with the record. So far-as by the rules of ]aw the facts must have been proved precisely as alleged, to that extent they are to be taken as having been so proved ; but where the proof may legally vary from the declaration, they are to be presumed to have so varied, if it be necessary to support the judgment.
Whether, then, error-lies for rendering judgment for a different sum from that declared for, depends upon circumstances. If it appear, that the judgment was for a greater sum than the party would, in any event, and upon any supposable state of evidence, be entitled to, the judgment is doubtless erroneous. So, anciently, where the action was for a debt in numero, while the rule obtained that the plaintiff could recover only for the precise sum declared for, a recovery for any other sum was erroneous, and this although he declared for a greater sum than he is entitled to. Duppa Exor vs. Mayo, 1 Saund. 281. It is undoubtedly true, at this day, that the plaintiff cannot recover except secundum allegata et probata, and if the recovery exceeds the amount declared for, it is erroneous unless cured by a remittitur. But so far as the amount of damages is uncertain, depending upon evidence to be exhibited to the triers, it is very certain that their finding is conclusive and cannot be re-examined by writ of error. It would be repugnant to the nature of a writ of error, and utterly inconsistent with the proceeding upon it, to sustain it, upon a suggestion that the jury have erred in the computation of damages. Such a proceeding would necessarily lead to the re-examination of evidence, and overleap at once the wide distinction between proceedings in error and proceedings upon appeal.
The question then is, whether in this case the judgment is inconsistent with the declaration, or in other words whether there be any supposable state of evidence, admissable under this declaration, which would warrant the recovery.
The note in question is described as having been made at Cambridge in this state. It was not however necessary to prove a note executed at that place, but a note made elsewhere, even in another jurisdiction, would support the action. — Honriett vs. Morris, 3 Camp. 304. Bay. on B. 22, 305. So “ the court will not take judicial notice, that a bill was drawn abroad, though alleged to have beenmade at Dublin.” Kearney vs. King, 2 B.& A. 301. Sprowle vs. Legge, 1 B. & C. 16. Deybel’s case, 4 B. & A. 243.
*91The note in question may be intended to have been made in New York where the payee resides. At all events, we cannot judicially know that if was not so, and if such an assumption is necessary to sustain the judgment, the fact may well be presumed, as proof to that effect was consistent with the declaration. If the note were executed in the state of New York, then the legal rate of interest in that state must be allowed, as it does not appear to have been made payable elsewhere.
But it is insisted that the judgment is too large, even if seven per cent, interest is allowed. But how are we to know judicially what is the legal rate of interest in that state ? Besides, the note may have been executed in some jurisdiction where a higher rate is allowed. In short, as the declaration in the original suit admits of evidence which would warrant the finding, and as there is nothing apparent of record to negative the supposition, that such evidence was exhibited, it follows that the judgment is not, upon the face of the record, necessarily and conclusively wrong.
We do not admit, that we may be required upon this proceeding to re-examine the computation of a jury, or to correct a mis-prison of the clerk in the court below. If we admit such a practice, we may be required upon a writ of error to do it in any case, and even to reverse a judgment for some trivial error, occurring in some nice calculation of principal and interest, growing out of numerous endorsements. And in such a case, we can make no distinction in principle, between this case and one, where owing to payments, the amount recovered, although less than the original amount of the note, may be more than the plaintiff is in reality entitled to.
The plaintiff in error has mistaken his remedy. Instead of this process, he should have filed his bill of exceptions, if there were in reality any controversy as to the rate of interest, and brought before this court the facts, which would have enabled us to judge whether the court below acted upon any erroneous principle. If there has been a mistake through the misprison of the clerk, in computing the amount of the note, he should have applied to the court below to have it corrected. That court might either correct the error directly, or grant a new trial for a new assessment, unless the plaintiff below would remit the excess. Such application may be made even now..
Judgment affirmed.