Muir sued Roberts and Roberts upon a complaint as follows:
11 James Muir complains of William Roberts and Jacob Roberts, and says, that the defendants, by their note, on the 16th day of August, 1840, promised to pay the plaintiff forty-two dollars and fifty-four cents, with interest at the rate of ten per cent, per annum, if not punctually paid when due; a copy of which note is herewith filed, which remains unpaid. And plaintiff demands judgment for fifty-six dollars.”
The defendants answered, setting up payment and usury. Reply. Trial, and judgment for the plaintiff for a fraction *545over 78 dollars. The defendant excepted to the entry of judgment for more than the sum claimed in the complaint. The exception was well taken and should have been sustained. 2 R. S., p. 38.— O’Neal v. Wade, 3 Ind. R. 410.
I W. Robinson, for the appellants.
D. Kelso and J. W. Gordon, for the appellee.
Excessiveness of damages is ground that will sustain a motion for a new trial. 2 Swan’s Pr. 925.
The judgment is reversed with costs, Cause remanded, with leave to the plaintiff to amend his complaint.