Loomis v. Tyler

4 Day 141

Opinion

N. Smith, J.

This cause was brought first before a justice of the peace; and by writ of error came before the superior court; and, being reversed, was entered in the docket of that court for trial. The parties before the superior court proceeded to try the issue of fact which was closed before the justice, without any new pleadings; and this, the plaintiff insists, is erroneous. But, in my opinion, the pleadings and issue were regularly before the superior court. The statute authorizing proceedings on reversal

(a) places the cause on the same ground as though it came there by appeal; in which case pleadings de novo would not be necessary.

The plaintiff’s counsel also insists, that the defendant’s avowry is insufficient in not giving a particular description of his close where the cattle were taken damage-feasant. But he has admitted in the pleadings, that the cattle were taken damage-feasant in the defendant’s close, and has taken issue upon the sufficiency of the fence. He has then waived all formal exceptions to the avowry; and, however defective it might have been considered on demurrer, it is now too late to take advantage of such defects.

The superior court, however, proceeded to render judgment that the defendant should recover his costs, without assessing any damages against the plaintiff. This, in my opinion, is clearly erroneous. Had the defendant prevailed on the general issue, or a plea in bar, costs only would have been regular; but an avowry wears a double aspect, being both a defence to the plain-; fiff’s declaration, and is itself a new declaration in favour of the defendant, and, if it succeeds, damages must be given.

It was argued at the bar, that the omission to assess damages being for the advantage of the plaintiff, he cannot be permitted to assign it for error. There are, undoubtedly, cases, where irregularities intervene in the process, or other proceedings, which, being for the advantage of the party against whom judgment is rendered, he shall not be permitted to avail himself of, by way of error; but where the judgment itself is defective, and the error is that of the court, the party who had an advantage thereby may assign it for error. This point is directly decided in Beecher’s case. 8 Co. 58. b. In that case, the plaintiff was allowed to assign for error, that he was not amerced upon entering a retra±it, though the omission was to his advantage; and the reason assigned is, that the amercement ought to have been parcel of the judgment, without which the judgment is imperfect; and it is the error of the court. So in the present case, the judgment for costs is an imperfect judgment, and it is the error of the court. It is not, therefore, for me to inquire whether a perfect, correct judgment would have been more or less favourable to one party or the other. It is enough that the court have rendered an imperfect, erroneous judgment.

The other judges were of the same opinion.

Judgment reversed.

Tit, 58. s. .8.