Waters v. Van Winkle

3 N.J.L. 804

• Court: Supreme Court of New Jersey
• Decided: May 15, 1811
• Status: Published

Opinion

Kirkpatrick, C. J.

— Costs are stricti juris. It would seem reasonable that the plaintiff in error, upon the reversal of the judgment against him, should recover costs ; because he has been put to costs and expenses in procuring a reversal of an unlawful judgment. But even to him, our act gives no costs; how then could it he imagined that the defendant in error, who has obtained such unlawful judgment, and against whom the reversal is had, should be entitled to costs? He has unlawfully vexed the plaintiff, and yet wishes him to pay the expenses of it.

' The court retaining the record, and awarding a venire de novo, does not alter the nature of the question. When placed in its simple form it is this: — Is the defendant in error, upon a reversal of his judgment, entitled to recover costs of the plaintiff in error? Certainly he is not. If the plaintiff in error, upon the reversal of the defendant’s judgment, had instituted a new suit, instead of taking out a venire de novo, as well he might, I apprehend the defendant would never have taxed his costs upon this reversal, iri his first action, and yet the course that has been taken, does jiot alter the case:

[*] Rosseií, and Pexningtqn, Justices, concurred in this opinion.

Costs taxed in favor of the defendant, from the awarding of the venire de novo.