Millard v. Jenkins, 9 Wend. 298

Millard v. Jenkins

9 Wend. 298 | N.Y. Sup. Ct. | 1832

By the Court,

Savage, Ch. J.

So far as the plaintiff attempted to recover on the ground of a false return, the common pleas undoubtedly decided correctly. The first return stated the verdict on the nineteenth day of February, and judgment thereon, and left it as a legal inference that the judgment was rendered on the same day that the verdict was brought in. The additional return stated the facts as they took place, from which it was adjudged by this court that the judgment was of course immediately consequent upon the verdict, and was a judgment of the nineteenth.

But the ground of complaint which remains is this, that the justice did in fact render and enter a judgment upon the twentieth day of February; that he knew the defendant wished to state the date of the judgment correctly in his appeal bond, and after the bond had been made to correspond with such date, and was approved by him, he altered the entry in his docket in such manner as to defeat the appeal. The witness states that in a conversation with the justice on the point of the correctness of the entry, the justice assured him that it should *301remain as a judgment of the twentieth. Now whether this entry was right or wrong is not material to the present enquiry, if in consequence of the subsequent alteration in the date, the plaintiff failed in sustaining his appeal. But it is the justice’s return by which the rights of the parties arc to be affected, and not the entry in the docket, provided thei e is a variance between them. As to the question, on which day the judgment was in contemplation of law rendered, there can be no doubt that it must be on the same day when the verdict is rendered; and the facts on that subject were spread before the court. The real ground of action, if any, which the plaintiff has, is, that the justice fraudulently, if it was fraudulently done, induced the plaintiff to give a wrong description of the date of the judgment. I doubt whether this is distinctly stated as the ground of action, but if it is, no fraudulent intent is proved. There seems to have existed a mutual mistake between the justice and the counsel for the plaintiff in error as to the right of a justice to take four days after verdict, within which to render a judgment. I apprehend, therefore, the court below were correct.

Another point was taken on the argument which seems to me also to be sound ; that is, that it was not shewn that there was any error committed bythe justice which could have been corrected on appeal. In an action for a false return, it should appear that the plaintiff was injured by the return made. In a suit for an escape or rescue at common law, the plaintiff must shew a good cause of action against the party rescued or escaping. In an action to a false return to a certiorari, it must appear to the court that the party sustained an injury in consequence of the falsity of the return. In this case how could the jury say that upon the testimony before them the plaintiff had sustained $157 damages? Had the appeal not been quashed the judgment of the justice might have been sustained, and the present plaintiff might have sustained even heavier damages than those to which he has been subjected. The evidence did not go far enough, and therefore the nonsuit was right.

Judgment affirmed, with double costs.