Arguelles v. Wood

1 F. Cas. 1106 | U.S. Circuit Court for the District of District of Columbia | 1825

THE COURT

(MORSELL. Judge,

contra] was of opinion that the plaintiff could not now receive credit for that acceptance; it being sufficient for the defendant, at this trial, to produce and cancel the acceptance.

MORSELL, Circuit Judge,

was of opinion, that if the acceptance was received by Wood as payment of so much of the rent, the plaintiff was now entitled to the credit, as it was not produced and cancelled, or tendered at, or before, the time of the distress. See Chit. [Bills,] p. 130, note 1; Phil. [Ev.] (Ed. 1821;) Harris v. Johnston, 3 Cranch. [7 U. S.] 311; Sheehy v. Mandeville. 6 Cranch, [10 U. S.] 253; Clark v. Young, [1 Cranch, (5 U. S.) 191,] and other cases cited in the note in Chit. [Bills,] p. 130.

The jury found their verdict for the defendant; damages $140, with interest frqm the 20th of July, 1824. After the verdict was taken down by the clerk, and before the jury separated, Mr. Ashton, for the defendant, suggested a doubt whether the verdict was correct, but did not then make any specific motion to amend it, and the court went into another trial, and the jurors in this case retired from the bar and separated. After the trial of the next cause, Mr. Hall and Mr. Ashton, moved for leave to amend the verdict, by stating that the $140 was the amount of the rent arrear, and

THE COURT

(CRANCH, Chief Judge,

doubting) permitted the amendment to be made. After the amendment was made, stating that the jury found one cent damages for defendant, that the rent arrear was $140, with interest, &e., Mr. Jones, for the defendant, moved in arrest of judgment, and contended that the verdict was not good at common law, nor under the statute of 17 Car. II. c. 7, because it has not found the value of the goods distrained; for by the statute the judgment for the defendant must not exceed the value of the distress. 2 Selw. N. P. 1144; Freeman v. Archer, 2 W. Bl. 763; Rees v. Morgan, 3 Term R. 349.

Mr. Ashton, contra. An avowry was a proceeding at common law, and if the verdict is for the defendant, the regular judgment at common law is for a writ de retomo habendo. The finding of the amount of the rent arrear, does not injure it as a common law verdict. It is surplusage; and we ask only the common law judgment of retomo habendo. Ham. N. P. 493: Rees v. Morgan, 3 Term R. 349. The verdict cannot now be amended so as to justify the statute judgment, but we are entitled to judgment at common law.

THE COURT (nem. con.) ordered judgment to be entered for the writ de retomo habendo.