22 Wend. 157 | N.Y. Sup. Ct. | 1839
By the Court,
The judgment was for the costs awarded to the defendant, (now the plaintiff,) in an action of assault and battery. The statute, R. L. of 1813, 506, ch. 203 § 50, repeated and enlarged in 2 R. S. 288, § 9, 2d ed., respects merely an endorsment of the di=
The case at bar has been discussed by counsel, as if the original judgment had been for damages arising from a wrong committed. That is not so. It was for the costs of a wrongful suit, which are given in the nature of a penalty to the party aggrieved. The analogy to a judgment for damages properly so called is not perceivable. Costs included in a judgment on contract are equally in the nature of a penalty ; and it is not denied that the action on such a judgment takes interest for the whole. Indeed, in an action for a statute penalty, (a certain sum,) given to the party grieved, he may recover damages in addition to the penalty, North v. Wingate, Cro. Car. 559, Sayer on Damages, 71, ed. of 1770, “ because,” adds the latter book, “ the money, it being a sum certain, is to be considered as a debt.” And see Thomas v. Edwards, as reported in 3 Anstr. 804, wherein the judgment was pretty much all for costs, and yet interest was allowed.
But take the case in the same light as if the judgment had been for damages arising from the assault and battery. It is said there is no adjudication reported, that interest may be recovered in debt on judgment for a tort. That may be so. But I imagine that a dictum of Chancellor Walworth speaks the sense of all the New York bar, and is according
I do not consider Crewze v. Hunter, 2 Ves.jun. 157, an authority against the plaintiff. On the contrary, several expressions of Lord Lougborough, in the course of the cause, which he appears to have considered with great attention, may be taken as. a concession, that interest was recoverable in an action on a judgment generally. I confess, however, that ! have been equally unfortunate with the counsel, in my endeavor to extract any certain guide from positive authority.; In England the cases are conflicting, though, I am inclined to think the balance of opinion to be, that interest is not allowable in an action on a judgment, unless the original demand carried interest. Butler v. Stoveld, 8 Moore, 412. I do not go over their cases. Thomas v„ Edwards is a specimen of the English authorities. .It occurs twice. In 2 Anst. 558, 35 Geo. 3, the court denied that the plaintiff could have interest; but when he came to his final judgment, some two years after, they allowed it, though the original judgment was- said to be nearly all for costs. 3 id. 804. What the residue was for, neither the counsel nor court deemed it material to inquire, so far as we can see from the report. Another instance : In Atkinson v. Lord Braybrooke, 4 Camp. 380, Lord Ellenborough said a foreign judgment (in Jamaica) constituted only a simple contract debt; and therefore did not carry interest j while in respect to another Jamaica judgment, Graham, Baron, said, had the plaintiff brought assumpsit, he might have recovered interest by way of damages. Doran v. O’Reilly, 3 Price, 250. It appeared by the affidavits read in the cause, that interest had, in fact, been recovered in the king’s bench in an action of debt. Asíate as 1823, we find the justices of the common pleas doubting whether interest might not be allowed even where the original demand did not carry interest. Butler v. Stoveld ut supra. Several of the neighboring states have I perceive very wisely settled the question by statute; while Kentucky
We think the latter principle the more reasonable. A Qew trial is, therefore, denied-.
New trial denied^