It is insisted by the plaintiffs in error that a judgment by default, the defendants not appearing although duly served with process, could not be rendered against them for a greater amount than is claimed in the summons. No authority is cited for this position, and the doctrine seems to be that the plaintiff’s declaration is the limit of his recovery. He can recover no more damages than he has laid in his declaration. 1 Ch. Pl. 339.
The prascipe in this case directed the clerk to issue a sumrnons laying the damages at six hundred dollars. Through his negligence, the damages claimed in the summons were but one hundred dollars. The damages in the declaration were laid at six hundred dollars. Here was a variance simply, between the declaration and summons, of which the defendants might have availed, they having been regularly served with the summons. This they did not do, and they cannot on error, take advantage of this variance.
It is cured by the eleventh section of the statute of Amendments and Jeofails (Scates’ Comp. 252.) There has been a writ and service regularly issued and made, and we hold in such case, by virtue of the omnipotent act cited above, a judgment rendered under such circumstances, where no greater damages are recovered than are declared for, cannot be reversed or set aside.
The court below, did right to allow an amendment of the summons, so that it should conform to the praecipe. So would this court allow it upon appeal or writ of error, it being a plain misprision of the clerk. Same statute, secs. 2 and 3, ibid. 250.
The judgment is affirmed.
Judgment affirmed.