Smith v. Jansen — 8 Johns. 111

Majority

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Smith and others against Jansen.

Headnote

Where the penalty of a bond for the gaol liberties was taken for more than double the debt and costs for which the prisoner.was committed ; but the excess consisted of the officer’s eiuton" this was whhin&e°statute. tio^nof {b”bt afn such b?nd> bbe suggestion of the breach ^general-of the condition, without^aikpng damages!tlcular

tilere was a demurrer to a declaration on such a bond, and the court declaration toMe sufficient, the entry on the thrjudgmenUm ^uid'^^stey! ed until the ruth of the breach to be suggested should be ascertained, and the damages assessed; this was held to be correct within the statute, (24 sess. c. 90. s. 7.) which is to receive a liberal and beneficial construction. The suggestion of breaches may be before a formal entry of judgment on demurrer, &c.

But where, in the final judgment, the court of common pleas gave judgment for the debt and six cents costs, together with the damages assessed by the jury, and also the costs of suit adjudged of increase ; this was held erroneous, and the judgment of the court below was reversed as to the sum assessed for damages, but suffered to stand good as to the debt and costs, including tlie costs of assessment ; and neither party in this case was held to be entitled to costs on the writ of error.

IN error, from the court of common pleas of Ulster county.

The declaration in the court below was in debt, for 54 dollars and 33 cents, on a bond dated the 18th September, 1807, given for the gaol liberties granted to Smith, 7 7 0 ° 0 e one of the defendants below, who was committed to „ . gaol on three executions, issued by a justice of the peace, amounting in the whole, with the officer’s fees for poundage, &c. endorsed thereon, to 27 dollars and 16 1-2 cents. The defendant, after craving oyer, and setting forth the condition of the bond, demurred to the decía7 ration, and the plaintiff joined in demurrer. The court below gave judgment, on the demurrer, for the plaintiff; but stayed the entry of the judgment, until the damages should be assessed on a breach to be suggested. The plaintiff then suggested a breach on the record, that r _ 00 _ _ ’ Smith did not remain a true and faithful prisoner, ac- ... - cording to the condition of the said bond; but escaped and went without the liberties of the gaol, &c. A venire . i - t i • . . was thereupon awarded, and a jury summoned, who found the truth of the breach suggested, and assessed the damages of the plaintiff, to 27 dollars and 16 ment thereon for the debt, and six cents costs, together . ° with the damages assessed by the jury, and also for 31 cents, and his costs at six cents. The court gave judg

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dollars and 78 cents costs, adjudged of increase, which damages in the whole amount to 59 dollars.

Sudani, for the plaintiff in error.

1. The bond is void, by the statute, being taken for more than double the amount for which Smith was committed.

2. The bond being taken merely for the indemnity of the sheriff, the breaches assigned should show how , much he has been damnified.^[1] This is not a case in which the plaintiff can recover nominal or technical damages, buthe must show actual damage. Admitting the plaintiff may recover nominal damages, yet as he proved no actual damage, he is entitled to no more.^[2]

3. The judgment is erroneous, being in assumpsit, and not in debt, and includes a sum beyond the penalty of the bond.

4. The form of the judgment on the demurrer is erroneous. Instead of saying, “ therefore it is considered that the plaintiff ought to recover his damages the court below, after saying that the declaration was sufficient, &c. proceed; “ but because it is convenient and necessary that judgment hereof should not be given, until the truth of a certain breach hereafter suggested shall be inquired into, and the damages which the plaintiff has sustained by reason of that breach be assessed by a jury, &c. let judgment he stayed until such time as the premises shall be ascertained as aforesaid.”^[3]

5. The recovery is not only for the debt, and six cents costs, but also for the damages assessed by the jury; and the costs of executing the writ of inquiry are stated to be costs of increase.^[4]

Van Vechten, contra.

1. Most of the errors assigned are amendable; and there is something by which the amendment can be made. This court will do what is right and just, and not suffer the party to be prejudiced by mere form.

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2. It is sufficient to assign a breach in the words of the condition or covenant; and the objection is not good arter a verdict or inquisition.

3. The plaintiff states all the sums for which the prisoner was confined; and the bond is only double the amount, including the constable’s fees. This can never be considered as a violation of the statute.

4. The form of the judgment, is amendable, and the court may correct it,

delivered the opinion of the court. Í, The first error alleged by the counsel for the plaintiff, is, that the bond was void, as it appears to have been taken for more than double the sum for which Smith was committed. The penalty of the bond is 54 dollars and 83 cents, and the amount of the three justices’ executions against Smith (including poundage, mileage, serving execution and other fees, endorsed on each execution) was 27 dollars and 16 cents. These several items amounted to 93 cents upon each execution, and the question is, xvhether they were part of the sum for which the prisoner was confined. He was to remain in gaol, according as the law stood in September, 1807, (Laws of N. Y. 28th sess. c. 93.) until “ the judgment xvith all taxable costs were fully paid;” and the bonds for the gaol liberties xvere to be in double the amount of “ the sum for xvhich the prisoner xvas confined.” According to the opinion of this court in Dole v. Moulton, (2 Johns. Cases, 206.) the poundage and fees of execution, as well as the sum in the execution, xvere to be paid by the debtor, before he xvas discharged, What xvas the amount of the mileage for serving the execution does not appear, and cannot be ascertained from the record, for it is not stated at what distance from the gaol of the county the execution xvas served, by the constable. There are 93 cents charged on each execution, in addition to the

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amount of the judgment itself, and the 19 cents for the execution; and, for aught that appears, the lawful charges of the constable might have been that sum, and the whole costs not exceed 5 dollars. The sheriff, when he took the bond, would naturally look to the amount of the debt and costs, endorsed on the execution. He never would think of scrutinizing into the accuracy of the precise amount of the costs; and the prisoner Smith, and his sureties, by giving the bond in exactly double the amount of the debt and costs, charged on each execution, must have acquiesced in the correctness of the sum. When there is no allegation or pretence oí extortion, or undue means exercised by the sheriff, in procuring the bond, it is right and just that the obligors should be concluded by that acquiescence; and such was the opinion of the court, in the case of Dole v. Moulton, already referred to.

2. The next error suggested, is, that a competent breach is not assigned. The breach suggested is, that the prisoner did not remain a true and faithful prisoner, according to the condition of his bond; but that he escaped without being discharged by due course of law. This suggestion assigns the breach generally, by negativing the words of the condition, and when such a general assignment necessarily amounts to a breach, it is sufficient. ( 5 Johns. Rep. 174 .) The suggestion goes beyond the case of an accidental or involuntary escape, for it alleges that the prisoner did not remain true and faithful, but escaped. And if the fact of a voluntary escape (as this must be taken to be) be once established, the condition of the bond is broken, and the bond forfeited. So it was declared- by the court, in Woods v. Rowan. ( 5 Johns. Rep. 42 .) The rest was a mere question of damages, and rested upon the proof to be produced to the jury. The assignment states a cause of action, by alleging a breach in fact, and that was

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enough to sustain the action, and to entitle the plaintiff to recover some damages. The question of the excess of damages never can be examined upon a writ of error. The evidence is not spread upon the record,

3. The other errors alleged, are merely formal. They go to the form of the record, and do not touch the merits of the case. It is said, that there is no judgment upon the record, after the demurrer, and before the assignment of breaches. The form in 1 Sound. 58. note 1. gives a judgment in such case; yet the entry goes on immediately to say, that it is convenient that judgment should not be given, but should be stayed until the breaches are assigned and the damages assessed. The record before us is more consistent and rational. It omits the entry of the judgment, and declares it to be postponed until, &c. This is agreeable to the truth and history of the proceeding. The statute does not mean, that the formal entry of judgment in cases of demurrer, or by confession, or nil dicit, is requisite before the entry of the suggestion of breaches. A previous determination upon the demurrer is sufficient. The statute, as the court of K. B. said, in Ethersey v. Jackson, (8 Term Rep. 255.) is to receive a liberal and beneficial construction; and that as the statute enabled the plaintiff to enter a suggestion on the record, even after judgment, á fortiori it might be done before.

The only remaining difficulty is as to the form of the final judgment. It would seem to be the better construction of the act, that the assessment is only to regulate the sum to be levied on the execution, and that the judgment is to be entered as if there had been no assessment of damages; for the statute says, the judgment is to be entered as “ heretofore.” The judgment would, therefore, be for the penalty, which is the debt and the costs, in which may be included the costs of the assessment of the damages. This is the construction given to the act by Serjeant Williams. (1 Saund. 53. note 1.

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2 Saund. 187. notes a. b. c.) Independent of authority, it would appear to be consistent with the end and design of the statute, that the judgment should be pronounced on the damages assessed ; for the plaintiff is bound to have his damages assessed, and to put that assessment upon the record; ( 4 Johns. Rep. 214 .) and he cannot recover beyond the assessment. But the course of precedent and decision is according to the letter of the statute, and ought now to be followed. In the present case, the. judgment is, as usual, for the debt and costs, but it is also for the 27 dollars and 16 cents, assessed by the jury. In this consists the gravamen. The case of Hankin v. Broomhead (3 Bos. & Pull. 607.) is very much in point, to prove that the judgment for the sum assess-, ed, in addition to the judgment for the original debt, is erroneous; and Lord Alvanley approves of the form of entry suggested by Serjeant Williams. We are, therefore, under the necessity of reversing the judgment upon the assessment, for the 27 dollars and 16 cents; and leaving it unimpeached, as to the debt and costs, including the costs of the assessment. The judgment here consisting of distinct parts, may be reversed as to one part only. (Str. 188. 2 Ld. Raym. 893. 1534.) The judgment of reversal must, therefore, be entered with this limitation; and neither party will be entitled to costs upon the writ of error.