Mangham v. Reed , 11 Ga. 137 ( 1852 )

By the Court.

Nisbet, J.

delivering the opinion.

[1.] No final costs were recoverable at Common Lawn 2 Inst. 288. Tidd’s Pr. 945. 2 Com. Dig. 542. By Statute of Gloucester, (6 Edwards, I.) the plaintiff shall recover costs in all cases where damages are recovered. Divers Statutes were subsequently passed to restrain this right of parties plaintiffs. The policy of these restraining Statutes was to discourage vexatious suits. The Statute with which we have to do just now, is that of 22 and 23 Charles II. By this Statute it was enacted, that “ in all actions of trespass, assault and battery, and other personal actions, wherein the Judge at the trial of the cause, shall not find and certify under his hand, upon the back of the record, that an assault and battery was proved, or that the freehold or title to the land mentioned in the plaintiff’s declaration, was chiefly in question; the plaintiff, in case the Jury shall find the damages to be under the value of 40 shillings, shall recover no more cost of suit than the damages so found shall amount to.” Whether trespass for injuries to personal property is within the provisions of this Statute, I do very much doubt. I am, indeed, inclined to believe that injuries to personal chattels are not within it. It has certainly been ruled in the British Courts, that when a party goes for a substantive, independent injury, done to personal chattels, this Statute does not apply. 1 Salk. 208. 1 Stra. 534. 7 Moore, 269. 5 U. & E. 482. 1 Taun. 357. Tidd’s Practice, 965.

[2.] This action is for an injury done to the plaintiff’s slave. We are all agreed, however, that this is a case where the plaintiff below was entitled to no costs at all; but that on the contrary, the defendant was entitled to his full costs. We so rule, upon the ground that the finding of the Jury, was, in legal contemplation, a finding for the defendant, and that the cost thereby was cast upon the plaintiff. The Jury rendered a verdict for the costs, in favor of the plaintiff. The question for the Jury to find, was that made by the pleadings. The plaintiff alleged an injury to his slave, by which he lost his services, and claimed damages. The defendant pleaded not guilty. The issue made was this: is the defendant guilty of the alleged trespass ? Their duty was to determine that question upon the proofs, and upon the proofs assess the damages. If they found him guilty, it was their duty to give damages ; if not, to find, generally, for the defendant. Here they have found no damages for the plaintiff, and the conclusion of the law is, that they could not and did not find the defendant guilty of the trespass. They found the costs for the plaintiff, but having found no damages — having thus determined the issue against the plaintiff — they had no right to find costs in his favor. To do so is to violate the law, for a finding for the defendant casts the costs in his favor. It is no part of their duty — that is, it is not necessary for the Jury, at Law, to say a word about the costs, in any event; for the law determines who shall pay the costs, upon their verdict. If they find damages for the plaintiff, they need not say with costs, for the law has settled that. If they find for the defendant, then also, the law determines the cost. At Law, the Jury cannot, as they may in Equity, find a special verdict.' They cannot find the issue made in the pleadings against the plaintiff, and at the same time find the costs for him. They have no power to do, what may seem to them equity between the parties. Their duty is single. Having undertaken to do what they cannot do — give costs without finding any damages — the result is, that their finding of costs is a nullity; and the finding was, in Law, a verdict for the defendant. When there is a verdict for the defendant, by Statutes of Great Britain, of force in Georgia, he is entitled to cost. Statute 23d Henry VIII. Schley, 160. Statute 4th James I. Schley, 235.

[3.] The verdict in this case, and the judgment for costs in favor of the plaintiff below, was a nullity. But the remedy, by illegality, filed against the execution, does not reach the evil. It is too well settled in our Courts, to need a farther remark, that illegality cannot inquire into the validity of the judgment. The execution followed the judgment. It was regular, and nothing is alleged against it, as having occurred subsequent to to the judgment. The counsel for the defendant in error knows the rights of his client, and will, no doubt, know how to pursue them. And whilst we agree with the Court below, that in this case, the plaintiff in the action, is not entitled to any costs, we reverse the judgment, on the ground that the proceeding by illegality, cannot help the defendant.