Pangburn v. Ramsay

11 Johns. 141 | N.Y. Sup. Ct. | 1814

Spencer, J.

delivered the opinion of the court. The principal question is, whether the plaintiff’s declaration contains a sufficient averment, that the judgment on which the writ of certiorari was brought, was reversed; for the allegation of fal„ sity in the return is sufficiently clear and explicit. The decíaration states, that “ by pretext whereof (the false return) he, the said Joseph, was not only prevented from obtaining any redress or reversal of the judgment and proceedings aforesaid, of the said Frederick, in the said suit between him, the said Frederick and the said Joseph; but the said Joseph was also compelled to suffer imprisonment, and to endure great pains in body and mind, and to pay and expend divers large sums of money.” After a verdict, there can be no doubt that this averment substantially sets forth the affirmance of the judgment, and the loss or damage consequent thereon. The doctrine on this subject is well settled by Sergeant Williams, in a note to 1 Saund. 128. Where there is a defect, imperfection, or omission, which would have been a fatal objection on demurrer; yet if the issue joined be such as necessarily required, on the trial, proof of the facts defectively or imperfectly stated, or omitted, and without which it is not to be presumed that either the judge would direct, or the jury would have given the verdict, such defect, imperfection, or omission, is cured by the verdict at common law. This principle was admitted and enforced, in the case of Bayard v. Malcolm, in error. (2 Johns. Rep. 550.) Considering this, then, an imperfect setting forth of the affirmance of the judgment it is entirely cured by the verdict; for it is a settled prim ciple that a verdict aids a title defectively set out. (Doug. 697. 2 Tidd’s Prac. 886.)

This view of the case renders it unnecessary to consider whether costs can be given on an arrest of judgment. But I think it proper to say they are not recoverable. An arrest of judgment is a refusal to give judgment; and the statute concerning costs does not extend to such a case.

The damages in this case having been found' by a jury, and this court being bound to give such judgment as the court below ought to have given, the judgment for the costs must be reversed, and a judgment entered that the plaintiff recover the damages found by the jury, and not remitted by the plaintiff; together with the costs of this court, and his costs in the court below; and that he be restored to all things, which he has lost by the judgment below. (2 Tidd’s Prac. 1130.)

Judgment for the plaintiff,