Van Bokkelin v. Ingersoll , 1 Lock. Rev. Cas. 428 ( 1799 )

These conclusions of the Supreme Court, (see 7 Cow. 670. et seq.,) were not disturbed by the Court of Errors, but expressly affirmed. The reversal was on a point to which apparently the attention of the Supreme Court was not particularly called. The jury had found a special verdict in the case, and among the items which they allowed the master in the amount of his lien, if the court should find him entitled, on the facts presented by, to a recovery, was an item for $140 wages due the master. The judgment rendered in the Supreme Court, included this item, and this was the only ground on which

The Court of Errors reversed the judgment. On the question being put, it appeared that the members of the court were unanimously of opinion that the judgment of the Supreme Court was erroneous, in allowing the master to recover for his wages, but that for the residue the judgment was right.

Whereupon a question arose whether the judgment of the Supreme Court could be affirmed in part, and reversed in part, and at a subsequent day,

The Chancellor stated the rule to be that when 'distinct judgments are given by the court below, as for instance a judgment for damages, and a judgment for costs ; one may be reversed and the other affirmed ; but when the judgment is entire, there must be a total affirmance or reversal. 8 J. E. Ill, 558; 12 id. 340, 434 ; 13 id. 460; 14 id. 417. In the special verdict in this case, the jury have stated the several amounts of the several items, but yet if the Supreme Court should be of opinion that the plaintiff was entitled to recover, they assessed the damages at a gross sum, and for that sum the court had given judgment. The judgment, therefore, as to the damages, was entire, and there must be a total reversal, with directions to the Supreme Court to award a venire de novo, so that the jury on the second trial might be instructed not to allow for the master’s wages in the verdict that they should pronounce.

It was thereupon allowed that the judgment of the Supreme Court must be reversed in toto with costs; whereupon a decree was entered to that effect by consent of parties, the following addition being made thereto. “ That a venire de novo be awarded by the Supreme Court, unless the defendant in error remit $140 (amount of the master’s wages) with interest, &c., and if he do so, that the Supreme Court give judgment for the residue of the damages included in the verdict, with costs in the Supreme Court.”