4 Binn. 5 | Pa. | 1811
Lead Opinion
In this case two points are to be decided. 1. Whether a writ of error lies. 2. Whether the judgment is good so far as it respects the costs.
1. The reason assigned against a writ of error is, that the act of assembly gives no remedy, but by appeal to the Court of Common Pleas. The case does not stand exactly on the footing of an award filed in the office of the prothonotary with no farther proceedings on it, because the matter was taken up on motion in the Court of Common Pleas, and that court have expressly given a judgment for the amount of the debt and costs awarded by the arbitrators. But even if it rested on the filing of the award, it is considered, as a judgment on which a writ of error lies, as was lately decided by the court at Lancaster in the case of Ebersoll v. Krug, 8 Binn. 528.
2. On a consideration of the several acts of assembly on the subject of costs on appeals from the judgment of a justice, or the award of arbitrators, it appears, that in ease of an appeal by the defendant, he shall not be subject to costs where less is recovered against him on the appeal, than the amount of the judgment or award appealed from, unless he produced new evidence on the appeal. No new evidence was produced in this case; by what authority then did the arbitrators award costs to the plaintiff? I think it will
The question in this case is, whether under the last supplement to the arbitration law passed on the 29th March 1809, the arbitrators have a discretionary power to award costs, in matters of contract?
The action originated before a justice of the peace of Centre county, and was referred. The arbitrators awarded forty-eight dollars and thirty-six cents to the plaintiff below with costs, upon which judgment was rendered by the justice. An appeal was regularly entered by the defendant below, and the suit was referred to arbitrators under the act above mentioned, who awarded to the plaintiff twenty dollars and costs. No appeal was entered hereon, but the defendant obtained a rule of the Court of Common Pleas on the plaintiff to show cause why the defendant should not be discharged, upon payment of the debt awarded and interest thereon .without costs. The court upon argument discharged this rule with considerable reluctance in January term 1810, and directed judgment to be entered for the twenty dollars and costs, as found by the last arbitrators: Whereupon error is brought in this Court.
Tke counsel for the defendant in error have insisted, that under the law in question, the only mode of redress which the party aggrieved by an award has,is by appeal; that the arbitrators have an incontrovertible power over the law and fact of each case submitted to them, absolutely conclusive unless where an appeal has been brought; and that in fact, the very matter in the controversy has been determined in this Court in M’Laughlin v. Scott 1 Binn. 61.
As to appeal being the only remedy, and as to the controlling superintending power of this Court, in cases of real and substantial errors apparent on the record, I have delivered
I do not mean to impeach the accuracy of the report of McLaughlin v. Scott. But the argument therein must have been very slight, and the decision made on little consideration. Not a single member of the court has the smallest note of it, which I have scarcely known ever to have happened before, where a point of law has been seriously debated. It was said in a late case of Stuart v. Harkins, in the Eastern district at the late December term, to require reconsideration.
It is not stated in the report, whether the action was removed from the Common Pleas into this Court, or whether it originated here. Prom the objection made by the defendant’s counsel, it would seem that the original process issued from this Court. I have not the immediate power of recurring to the record; but it appears to me clearly, that in either mode, the determination cannot be reconciled to the words of the laws. By the act of 20th May 1767, sec. 8,1 Dali. St. Laws 480, it is provided, that if a plaintiff shall remove his cause from “ the Court of Common Pleas into the Supreme Court, the debt or damages whereof, which shall be found due by default, confession, verdict, or report of referees, shall not amount to 501. he shall not recover any costs of suit.” And by the act of 25th September 1786, giving the Supreme Court original jurisdiction in the city and county of Philadelphia, it is likewise provided by sect. 5, 2 Dali. St. Laws 472, that “if any plaintiff shall bring any suit or action in the Supreme Court, unless where the title of land or other real estate may come in question, and shall not recover thereupon more than 50i. such plaintiff shall not be allowed any costs of suit.”
It is a settled rule, that statutes giving costs, being considered as penal in their nature, are always construed strictly. 2 Stra. 1105; 3 Burr. 1287. But that case was within the letter of both laws. It does not to be a wherein *the defendant made a set-off, for there it is wholly in the defendant’s power and knowledge, whether he will insist upon and prove his set-off at the trial; consequently the reducing of the plaintiff’s demand at the option of the defendant ought not to impair the plaintiff’s right to
Under the “act for defalcation,” passed in 1705, sect. 3. 1 Dali. St. Laws 66, the award of referees mutually chosen, and made according to the submission of the parties, approved of by the court and entered on the record, shall have the same effect, and be deemed, and taken to be as available in law, as a verdict given by twelve men. The power of the court in M’Laughlin v. Scott, to withhold their confirmation of the report will not be denied; nor can it be said, that the referees were not bound by the known laws of the commonwealth. Their power cannot justly be assimilated to those of arbitrators on a bond of submission, whose award cannot be impeached at law, on grounds of the grossest partiality. Nor can it be insisted, that it was the intention of the act of 29th March 1809, to vest arbitrators with powers of deciding according to their caprice, or mere will and pleasure, and absolve them from all obligations to fixed and settled rules. Why else was an appeal granted, wherein those rules must necessarily be the guides of the tribunals, which should ultimately settle the controversy? ' Under the 10th sect, of the act, “the arbitrators were to be sworn or affirmed justly and equitably to try the matters in variance, to examine proper, disinterested, and competent witnesses, to judge of the credibility of their testimony, and to decide on the law, and the facts, that may be involved in the cause to them submitted.” They sit without legal aid, and the powers granted were indispensably necessary to carry into execution the plan of reform of judicial proceedings adopted by the legislature. So far from showing any design to vary the known and established rights of individuals, or to impair the energy of the laws, these powers evince in a forcible manner, the strongest intention to the contrary. To a certain extent, the court have a controlling power over the cause in which the award is made; and a variety of cases may be *put to show the absolute necessity of such right, and the salutary influence arising from the discreet exercise of it.
It is true, that in Browne v. Gibbons, 1 Salk. 207, it was said to be the resolution of all the justices of the King’s Bench and Common Pleas, that in an action upon the case for slander, though the court are bound by the Stat. 21 Jac. 1 c. 16, and cannot increase the costs where the damages are under 405. yet the jury are not bound by that statute, and therefore they may give 10?. costs where they give but 10c?.
The courts of this state have adopted the same rule of decision in actions of slander, and where the jury have found, in such a suit, damages under 40s. with full costs, judgment is always rendered accordingly. At Nisi Prius and in the Circuit Courts, it has been common in such suits, where damages under 40s. have been found with six cents costs, to inquire of the jury, whether they meant to find full costs or not, and to enter the verdict according to their answer. But where the entry is made with six cents costs, the plaintiff' gets no more costs than damages. Frederitze v. Odenwalder, was an action of slander, removed by the plaintiff into this Court from the Common Pleas of Northampton county; a verdict passed for the plaintiff for twenty-five cents damages with six cents costs, and the Court in banc in March term 1799, were *of opinion, that he was not entitled to costs. And in Stuart v. Harkins, before cited, where referees in slander found one dollar damages with costs, we were of opinion, upon full argument, that the plaintiff should recover no more costs than damages, and affirmed the judgment of Mr. President Rush given to the same effect.
I well recollect the cause of M’Kissom v. Steel et al., wherein I was of counsel with the plaintiff, tried at York Nisi Prius. It was trespass and false imprisonment against a justice of the peace, constable and plaintiff below, for confining the plaintiff above in a cause not within the jurisdiction of the justice. We had removed the cause from the
But the striking difference between all those cases and the present one is this. In causes of action of a vindictive nature, which arise peculiarly ex delicto, there cannot in the nature of the thing be any settled measure of damages. The jurors or referees estimate the injury from their own individual feelings, and the consequences of such acts in social life; and they may deem it eligible to assess a particular sum in damages, beyond the costs, which may be deemed an adequate compensation for the wrong done. On such subjects, there may be great diversity of opinion in well informed minds. But here the cause of action arose ex contractu ; and there was a settled measure of damages, which might be calculated with the utmost accuracy and precision. It becomes no prudent man to overstep the line, which the wisdom of the community has drawn in order to repress a state *of litigation. The jury are to give costs where they are recoverable. If they do not, the court will on motion order the costs to be taxed, and endorsed on the postea. Hull. Law of Costs 623. But to permit jurors, referees or. arbitrators, to alter and change the municipal code of laws, and substitute therefor, their, own idea of the hardship of particular cases, tends to confusion and uncertainty. Let them judge of facts according to the suggestion of their judgments and consciences; when these facts are found, let the language of the law be the rule as to the costs. In Walker et al. v. Smith, in the Circuit Court of the United States for this district, the jury found for the plaintiffs 468 dollars 44 cents; but conceiving it to be a hard case, added, that the plaintiffs should pay the costs. But this was at once abandoned by the defendant’s counsel, on general principles ; and the court declared, that the plaintiffs were clearly entitled to costs, 4 Ball. 390. And in Guier v. M’Faden, 2
The supplement to the arbitration law of 9th April 1807, s. 2, 8 St. Laws 178, has enacted, that where the defendant has appealed from a judgment of a justice of the peace, and on such an appeal procures an abatement of the same judgment, he shall be allowed his daily pay of fifty cents and costs, where he does not exhibit new evidence. Here the defendant below has obtained a deduction of 28 dollar’s 36 cents from the judgment of the justice, without exhibiting new evidence; and he and not the plaintiff' is entitled to costs.
I am therefore of opinion, that the judgment rendered in the Court of Common Pleas of Centre county be reversed.
Concurrence Opinion
I concur on the first point, that in this case a writ of error lies. On the second point, I observe, that a statute denyiug costs must be on the ground of checking the vexatiousness of bringing actions, where bud small damages have been sustained; or the troubling a superior court with these, either by actions originally brought, or removed from an inferior jurisdiction. Will there not be cases out of the reason of the statute, and therefore not within the statute? Can these be specified in the statute? Is it practicable, or is it necessary ? Are not the courts of law competent to note these; and have they not the power, as in all other cases, by the common law, to say what cases are within the meaning, or not within the intendment of the statute ?
But what exceptions can there be, of which we may suppose them to have a right to judge?
Where it can appear that the action was not vexatious in the bringing or removal, the reason of the statute does not hold; and this may be inferred from the sense of the jury on the subject, giving costs even in a ease of small damages.
The small means of the defendant given in evidence may reduce the damages, in an action for words or trespass.
The 22d and 23d of Cha. 2 was held not to extend to a trespass where the defendant justifies. 2 Levins, 234.
“ The common law did not professedly allow any costs, the amercement of the vanquished party being his only punishment ; though, in reality, costs were always considered and included in the quantum of damages, in such *actions where damages are given; and even now, costs are always entered on the roll as increase of damages by the court.” 3 Black. Com. 399.
Why is it necessary that the jury give some costs in order to enable the court to make this increase? Would not the verdict carry costs without any finding as to this particular ? It would seem not; and why ? I know not unless that it may appear that costs have not been included in the damages. For if they had included them in the damages, might they not still say we have, and therefore no costs. If they can exclude costs by their finding, notwithstanding the statute, why not give them, when it may be no more than to say, we have reduced the damages with a view to that. It is for the benefit of the defendant; because, otherwise, they would be under the necessity of giving damages to the amount that would carry costs.
In an action for a breach of contract, where the damages are matter of estimation, why may not a jury exercise a discretion as to costs ?
Where the demand is for a sum certain, and is reduced by a set-off, it is not within the statute as to costs.
Even where no set-off, may there not be circumstances that will repel the imputation of vexation, in bringing or remov
On an appeal from a justice, or from referees, the rejection of testimony, on rigid rules of evidence, which testimony was before the justice or the referees, might account for the not establishing as much on the appeal, as before the justice or the referees, and rebut the imputation of delay or vexatiousness intended in making the appeal.
What a jury may do, referees may do. M’Laughlin v. Scott, 1 Binn. 61, is in point.
I have always construed limiting jurisdiction, and not allowing costs, as meaning no more, than that costs shall not follow, as an appendage, or incident of the judgment.
It is a maxim of our law as of the civil, that victus victoñ in expensis condemnandus est; and before the statute of Gloucester, these were included in the damages. They are due ex debito justitice ; and laws disallowing, are to be liberally construed in favor of this equity. *The denying an appeal to a court and jury, but under penalty of paying costs, unless an equal sum is recovered, is in derogation of the trial by jury, and ought to have a strict construction.
I incline, therefore, to affirm the judgment of the Court of Common Pleas.
Judgment reversed.
[Commented on in 4 S. & R. 419 ; cited in 6 S. & R. 39 ; 13 id. 231; 14 id. 346 ; 10 Wr. 235 ; 9 S. 334.]