The defendant is sued on his three several promissory notes. The only defence urged by him is, that two of the notes sued upon were included in the last note which was given by him to th.e plaintiff on the 3d of April, 1851, for the sum of $832 88.
The Judge a quo considered the proof insufficient to sustain the defence, and ga-ve judgment in favor of the plaintiff, and the defendant appealed.
After a careful examination of the evidence, we are not prepared to say that the Judge a quo erred in his conclusion.
Our attention has been drawn to an error in the judgment of the inferior court in allowing the plaintiff eight per cent, instead of legal interest on the note of $68, amounting at the rendition of the judgment to $14 89. The *70plaintiff in his petition only claimed five per cent, interest. It is admitted by the plaintiff’s counsel, in their brief, that the error was committed by them in writing the decretal part of the judgment. Although this may not strictly be considered as a remittitur, yet we think it is a sufficient reason to authorize us to amend the judgment in this respect; but in doing so, the costs are not to be thrown on the appellee, as it was clearly incumbent for appellant to have applied to the Judge a quo for the rectification of the error on a motion for a new trial. 5 Ann. 26.
It is therefore ordered and decreed, that the judgment of the District Court be amended, by allowing the plaintiff interest at the rate of five per cent, per annum on the note of §68, from 18th April, 1853, instead of eight per cent, per annum on said amount, from the 1st of April, 1847, as decreed by the judgment of the District Court, and so amended that said judgment be affirmed with costs.