2 Johns. Cas. 406 | N.Y. Sup. Ct. | 1801
The act, (see Rev. Laws, vol. 1, p. 349, 24 sess. c. 90,) is compulsory on the plaintiff in all cases within it. (2 Wils. 377. Cowp. 357. 5 Term Rep. 538, 540 to 636. 8 Term Rep. 127.) The jury, in this case, ought, therefore, to have assessed six cents damages for the detention of the debt, and that, on a judgment for the penalty, would have entitled the plaintiff to costs, and also damages for the breaches of the covenant under the act. It is understood that the six cents damages was meant by the jury for the breaches. If so, and the other six cents being of course, the judgment, in form, is still for the penalty, for the act says, “ the judgment shall be entered as heretofore,” &c. But the plaintiff can only recover on the execution the damages assessed; but as the judgment is for the penalty, he recovers full costs. If, then, the fact be, in this case, that on the record the damages are stated to be, only for the detention of the debt, there ought to be a venire de novo, as in Drage v. Brand, (2 Wils. 377,) and Hardy v. Bern, (5 Term Rep. 636.) But the notice, and the motion of the defendant is not for a venire de novo, but merely to be relieved against the *costs. We are not, therefore, now to inquire into the regularity of the entry on the record, the judgment being for the penalty, the costs follow of course. Nor would it avail the defendant, if he had moved for á venire de novo for nominal damages must then be given on the breaches, and the judgment being, ¡oro forma, for the penalty, full costs, would also be given. The motion must be denied.
Motion denied.(
(a) [Old note.] See Caverley v. Nichols and Brown, 4 Johns. Rep. 189. Van Benthuysen v. Dewitt and another, 4 Johns. Rep. 213. [Add: see Munro v. Allaire, 2 Caines’ Rep. 320. See Graham’s Prac, 2d ed. 717, 718.