Cady v. Fairchild — 18 Johns. 129

Majority

p. 129

Cady against Fairchild and Wife.

Headnote

In an action of trespass in a Justice's Court, where there is a verdict and judgement for the defendant tje court, will not reverse judgment, because Against evidence, if it the injury was trivial, and the plaintiff e,¡t¡damages only, merely SUibr 13 “3ntsandvexa"

IN ERROR, on certiorari, to a Justice’s Court.

^ 7 . . . . Lady brought an action ot trespass against Fairchild and his Wife, who pleaded not guilty. The plaintiff and defendants lived under the same roof, occupying distinct parts of the house. The plaintiff, who had a lease for one year, removed with his family, and'the principal part of his furniture, before the expiration of the year, leaving a few old articles, of little value, in the apartment he had occupied. The defendants put the articles so left by the plain- * ,1 t J 1 tiff, out of the house, where they remained for several days, and were then put back again by the defendants, without receiving any material injury. There was a trial by jury, and a verdict for the defendants, on which the justice gave judgment.

This is strictly a verdict contrary to evidence ; but as no more than nominal damages ought to have been given, no material injustice has been done ; and we ought to apply the rule which has been settled in regard

p. 130

to new trials In Burton v. Thompson, (2 Burr. Rep. 664.) Lcmi Mansfield said, “ it does not follow, by necessary consequence, that there must be a new trial granted in all cases whatsoever, where the verdict is contrary to evidence;’ as “ where there is no, real damage, and where the injury is so trivial as to not deserve above half a crown compensa-salion and a new trial was denied in that case, though it was admitted that the verdict was directly contrary to evidence.^[1]

Though there is ground for a distinction between granting a new trial, and reversing a judgment, on return to a certiorari; yet, where the object of the plaintiff in error is merely costs, and to vex the defendant, we are justified in refusing to reverse the judgment. The judgment must, therefore, be affirmed.

Judgment affirmed.^[2]

(a) (a) Vide Hyatt v. Wood, 3 Johns. Rep. 239 . Fleming v. Gilbert, Ib. 528. Feeter v. Whipple, 8 Johns. Rep. 369 .

(b) (b) A certiorari lies to reverse a judgment of nonsuit, where costs are awarded against the plaintiff. (Smith v. Sults, 2 Johns. Rep. 9 .)