Moore v. Coolidge

1 Port. 280 | Ala. | 1835

By Mr. Chief Justice Saffold :

Coolidge brought assumpsit in the Circuit Court against the plaintiff in error, as acceptor of a bill of exchange for $672; the same having been indorsed to the former.

The record shows a verdict and judgment for $793 45, which is more than the amount of interest which could have accrued upon the bill. The .counsel for the plaintiff in error, insists that the excess must have been allowed as ten per cent, damages, for the non-payment or protest of the bill, and which he insists was unauthorised by law. This is the only assignment of error riow relied upon-r-that the jury rendered a verdict for more damages than the law authorised.

The argument embraced fully the question, whether or not, in an action against the acceptor of a bill of exchange, the plaintiff can recover the ten per cent, damages, under’ any circumstances. The counsel for the present defendant, maintains the affirmative, but contends that the question is not presented by the record, and cannot be considered in this case.

It is true that the record contains no bill of exceptions, or any thing showing any opinion or instructions of the court on pny point of the case, unless it be in rendering judgment in strict pursuanoe of the verdict. The mistake or error in the verdict and judgment can only be presumed, on the hypothesis, that the writ and declaration state correctly the amount of the bill — that they do may be very probable, but this presumption i,s not sufficient to set aside the verdict. The law has prescribed a different remedy in case of an unauthorised verdict ; this is by motion for a new trial in the court below : or if the illegality originated in the instructions of the court, and exceptions had been then taken and spread on the record, the same wpuld have become subject to the revision of this court, in error, In this respect the effect of a verdict is entirely different from that of a judgment by default, nil elicit, or on demurrer, &c.: in those cases the court is authorised “ to enter judgment for the debt or demand, and interest thereon, to be calculated by the clerk of such court up to the time of' rendering judgment, without the intervention of ajury.”^a

The provisions of the later statute, authorising this court, where there has been a miscalculation of interest, or other clerical misprision, in entering judgment, to order the same be amended at the cost of the plaintiff in error ,^b are equal \ ly inapplicable." The judgment corresponds with the verdict, and there is nothing of record conclusively showing that the latter is unjust or illegal; nor is there any intimation of dissatisfaction with it at the trial, when both parties appear to have been present, to maintain and defend their rights.

Under this view of the case we cannot decide, therefore, it, is unnecessary to consider the principle relied on by the counsel for the plaintiff in error.

a Aik. I). 269.

b Aik. D.