Steele v. Bates , 2 Aik. 338 ( 1827 )

Hutchinson, J.

It appears by the case, that the plaintiff, in proving the second count of his declaration, offered the record of the writ, service and judgment, in the action of slander brought by Bates, upon which writ Steele was arrested when he came out from Canada to attend the arbitration. This, it seems, was urged as proper, both to show the breach of the promise in the second count, and for the purpose of enabling the plaintiff. Steele, to recover back, as damage, the whole amount of the judgment contained in said record. This was objected to on several grounds — 1st. On account of the variance in the date of the writ named in the declaration, from that contained in the record. This objection is without foundation; for the declaration does not allege what was the date of the writ, but only alleges that, on the 24th day of September, J 822, the defendant did sue and commence an action of defamation against him, &c. This date, forming no part of the description of any writing, but only pointing to a time when an act was performed, the day was immaterial, and the record of a writ dated the 25th of the same month well supports the allegation. —See 1 Phil. Ev. 171, 173.-2 Ibid. 3.

Another objection to this record, was, that it could be no ground for the plaintiff’s recovering damages in this case, especially, as there is no pretence that the judgment has been paid and satisfied. The court overruled the objections, and admitted the record. The charge of the court to the jury upon the effect of this record upon their verdict, may well be considered in connexion with their decision to admit the record. The defendant madé several points in his request to the court for their instruction to the jury. The second was, that no special damages could be recovered, as none were alleged. The third was, that the jury could not take into consideration, in assessing damages, the amount recovered in the action of defamation, as that was adjudicated upon in a court of competent jurisdiction .; and the fourth was, that they could only give the immediate, not the remote damages. The only charge given upon these three points, was, that if they found the promises made and broken, the plaintiff was entitled to recover all the actual damages he had sustained in consequence of the breach of said promises. By this the jury were warranted to include in their verdict the amount of said judgment, as the record was admitted for that purpose, and the same was not excluded in the charge of the court. ,

In this the court erred, and a new trial must be granted. It appears by the record, that Bales recovered in the county court a little over fifty dollars; and Steele appealed to the Supreme Court, and the judgment there was one hundred dollars, with a proportionably larger bill of cost. If the present plain* tiff could, in this action, recover back any part of that judg* ment, it would be very unjust for him to recover that part which was occasioned by his own appeal to the Supreme Court. Further, there could be no pretence for his recovering it back, or having it included in his verdict, without he first proved that he had paid it. But there is yet a more fatal objection, which was urged and overruled. — That was a judgment recovered upon the trial of the merits of an action regularly pending before a court of competent jurisdiction. It is, therefore, conclusive between the parties, so long as that judgment remains in force and unreversed. The present plaintiff, instead of treating the action of defamation as an illegal suit, and abating the writ, and procuring his oyrn discharge from it, elected to treat it as. a legal suit, and proceeded to a trial of its merits. That judgment is a conclusive bar to any action Bates can ever bring for the same defamation. It would be strangely unjust that it should be thus valid to bar Bates’ cause of action, and jret have no force for him to collect and hold the money as against Steele. Such is not the law. It is binding upon both parties so long as it remains in force. •

The Court are well agreed thus far; but it escaped our recollection, while together, to consult upon some other points raised, upon which some directions may be necessary in relation to the future trial of the action. ^(a) .

The members of the Court present are agreed, that the plaintiff can have no claim to recover his costs, in defending the action of ejectment, that accrued after the action was appealed by him. I think, myself, that he has a claim, if he declared for special damages, and, if he recovers at all, for a compensation for his trouble in being arrested in the defamation suit, and procuring bail, and, as he must expect the writ would be returned to court, for his trouble and expense in procuring the writ abated, and himself discharged. But, from the time he began to defend it as a legal suit, and his expenditures were upon a trial of the merits of the controversy, he has no claim to recover back those expenditures, for it cannot be presumed that it cost him any more to try the merits of the cause in that suit than in any other. But the declaration contains no averment of special damage. There ought, at least, to have been an averment, that the plaintiff was put to great trouble, and expended large sums of money, to wit, $-, in defending said suit.

Skinner, Ch. J.

It would have been desirable that the Court should have been prepared to give instructions on all the points litigated. I could never consent to say, that a man should be permitted to decoy another from a foreign government, and then, in violation of his faith, to sue him here. I believe the Saw to be now settled, that the process might have been avoided for the fraud. I think, also, that Steele may mover back cos^s *n the su^ UP to the time he took an appeal therein. As to the averments in the writ, all expenses that accrue are damages which follow, and may be recovered without being specially alleged.

By thb Court.

A new trial is granted.

The plaintiff then moved for, and obtained leave to amend his declaration, by charging special damages.

(a) At the request of the counsel, this case was heard at Danville, by the whole Court; but, ro consequence of the statute requiring the Court to sit in Essex and Orleans counties on the same day, only two of the judges attended at Guildhall, the other two having proceeded to Iraslmrgh.