Brown v. Smith

3 Cai. Cas. 81

• Court: New York Supreme Court
• Decided: May 15, 1805
• Status: Published

Opinion

May, 1805.

ON certiorari from a justices’ court, in trespass gure clausum fregit, the errors relied on were, 1st, That the verdict being for one mill, no judgment could be, or in fact was rendered upon it. 2d, That as no costs were found by the jury, the justice was not warranted in giving judgment for any.

On a verdict for one mill, no judgement can be rendered and if it be en tered for the costs only, it is error. Whenever the jury give damages, costs follow by the statute, and threfore need not be found,

By our act “ relative to the money “ of account of this state”* all fractions of money, less than cents are, in judicial proceedings tobe rejected. The verdict then, could not be legally received, and, if so, there was nothing on which to found a judgment. On the second point, though it may be said that the finding of costs is mere form, and the court will order it to be done, in order to carry those of increase, yet this very circumstance shews they are essential. They are peculiarly so in this case, which is an action sounding in damages. If not found, they cannot be assessed by the justice, and a judgment rendered for them alone.

The statute relative to the money of account was passed antecedent to the £10. act, and as inferior jurisdictions take nothing by implication, the justices’ court is not affected by it. Besides it speaks only of judgments and decrees, not of verdicts, and the judgment is in dollars and cents. Another answer may be given, that the errors are in form only, and therefore not to be now regarded, as, after verdict, they are cured by the statute of jeofails.

On the second point it is unnecessary to say any thing. The jury need not find costs ; they are given by the statute, wherever damages are found. But the judgment must be reversed; without any law none could be given on a verdict, it is a nullity and could not be the basic the of any judgment.† In that which is now rendered, the justice is obliged to reject the verdict, for there is no judgment as to the mill. It is for costs only, and if carried into effect there could be no levy tor tne verdict. There is no such currency as the sum given. given.

See Finch’s Law 29 Shore v. Thomas, Noy Rep. 4. Contra Marsham v. Buller 2 Roll. Rep. 21. Vide also 2 Bos & Pull. 36, Governor &c. of Harrow School v. Aldeston.