Moore v. Ross , 1 Morris 401 ( 1845 )

Per Curiam,

Mason, Chief Justice.

We will first consider the subject of the demurrer filed in the court below. We think that by pleading over the defendant waived his objections to the overruling of the demurrer. See 1 Scam’s, Reports, 222, 310, 281 & 471. This rule will not prevent a review and correction of such errors as are vital and which can be reached by a writ of error, without the filing of any demurrer. But for formal defects we think it will be better to eompel¿the parties to stand to their demurrers or waive their objections.

But the point which seems to be most confidently relied upon by the plaintiff in error is, that the court erred in rendering full costs—there having been less than fifty dollars damages found by the jury.

The rule contended for by the plaintiff in error, would be unjust and unreasonable. The justices’ act limited the jurisdiction of the magistrate to cases where the value of the goods and chattels wrongfully detained, was not more than fifty dollars. The bare damages for wrongfully detaining property of the value of thousands of dollars, would often be less than fifty dollars, so that if the construction contended for be the true one, the most outrageous wrongs and impositions might be perpetrated, and then all remedy denied to the injured party, except at his own costs.

But such is not the natural construction of the statute upon which the plaintiff in error relies. That statute declares:

“That in all actions of tort, brought originally in any of the District Courts of this territory, if the plaintiff recovers less than fifty dollars, such plaintiff shall recover no more costs than damages;” Acts of 1840-41, page 21.

The question of costs here is dependant not upon the amount of damages, but upon the whole amount recovered. This in the present case was a large amount of hops claimed by the plaintiff below, to be worth $500,00. Had he not given bond and been put into possession of these hops, the suit might still have progressed and the valuó of the hops might then have been a part of the damages recovered. See acts of 1833-0, pages 399 & 400, sections 11, 15, 21. Iosuch cases he would clearly have been entitled to full costs, if the whple amount of the recovery exceeded fifty dollars. By giving bond and getting possession of his property at once, his right to costs is not placed in jeopardy.

It may be objected that in this case there is nothing to show that the full value of the property recovered exceeds fifty dollars, but the simple answer to this is, that he who seeks a reversal, must himself make out and demonstrate some positive error in the proceedings below.

Judgment affirmed.