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1822.

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CRUMP.

able to the present; and the dictum of Mr. Justice Buller in Gamon v. Jones, must be taken to be merely referrible to a judgment in replevin, under the stat. 17 Car. 2. c. 7. The case cited from Rolle's Abridgment (a) turned on a mere question of amendinent on account of the misprision of the clerk, and not on an error of the Court. At all events, a Court of Error cannot rectify or amend a judgment found against a defendant :-if they could, a writ of error would not avail him, and it would have the effect of rendering the statutes of Jeofails altogether unnecessary. It is only further necessary to observe, that in Williams v. White, there were two distinct and independent judgments, and in which, objections were made to the process, and not to the judgment of the Court.

Cur. Ado. Vult.

Lord Chief Justice Dallas on this day delivered the judgment of the Court as follows:

The first error assigned is, that the whole of the consideration for the promises made by the defendant, is not alleged to have accrued within the jurisdiction of the inferior Court; but it is alleged that the work and labour done by the plaintiff, in curing and endeavouring to cure the defendant's horses, was done within the jurisdiction; and it is further alleged, that the ointments and medicines which were used, were administered and applied on those occasions, which we think sufficiently shews that they were administered and applied there.—The second error insisted on is, that whereas the jury have assessed the plaintiff's damages, besides his costs and charges, at il. 8s. 6d., and those costs and charges at 12d.; the Court, in giving judgment, have omitted the costs assessed by the jury, and yet have awarded costs of in

(a) Page 205.

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crease, there being nothing to which such.costs of increase can attach themselves; and then have summed up together the damages and costs of increase, omitting the costs assessed by the jury, which it has been contended vitiates the whole judgment. In support of this objection, the case of Heines v. Guie (a) was cited, where the jury gave a verdict for 81. damages, and 2d. costs; and the judgment was ideo considerat est quod the plaintiff recuperet dumna sua per jurat pradici' assessa in forprædicla ad 81. necnon 20s. pro misis et custag' de increment' Curie : and adjudged error, because the costs given by the jury were omitted. The case of Anger v. Brookhen (6), is to the same effect, where the jury, on a writ of inquiry, assessed the damages at 100%. and 6d. costs, and the judgment was quod prædict' querens recuperet damna sua prædict ad cent.libras per inquisition' prædict compert et pro increment? 71.; and the Court unwillingly held this to be error, because the jury had given particulars, and found so much for damages, and so much for costs, and the judgment was for the damages only; which they thought was not a mere miscalculation, but a total omission of the costs found by the jury. It seems, that if the Court could have considered it as a mere miscalculation, they would have disregarded the objection : and there are cases which would have warranted them in so doing. Viner's Abridgment has been referred to in the course of the argument, and the case of Guier v. Goter (c) is there reported as follows :-" In an action upon the case upon a promise, if judgment be given for the plaintiff upon demurrer, and a writ of damages awarded, and thereupon damages taxed to 35l, and upon this judgment is given quod querens recuperet damna predad 371. per juratores præd' assessa; yet this judgment is not erroneous; because the judgment is perfect by the first words, quod recuperel

(6) 2 Show. 56, 88.

(c) 9 Vin. Abr. tit.

(a) Yely. 107. Error. (B. b) pl. 13. 572.

VOL. VII.

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damna prædicta, withoul more; and therefore the summing up

thereof afterwards is but surplusage; and therefore, this being mistaken, it does not vitiate the judgment.” So in Moorecock v. Hooles (a)," in an action upon the case upon a proinise, and verdict for the plaintiffs, and damages and costs given, and the judgment is, quod querens rečuperet damna sua ad 61. per juratores prædiclos in forma prædicta assessa, and the damages and costs are mistaken, not amounting to so much; yet this is not erroneous; for this is only a miscasting, and damna præd' intends only those which were assessed ; and so the judgment is not for more.” Here the judgment is, that “ the plaintiff do recover against the defendant bis damages, costs, and charges in form aforesaid assessed by the said jury at il. Ss. 6d. and also 71. gs. 10d. for his costs and charges aforesaid, by the said Court here adjudged of increase to the said plaintiff, and with his assent, which said damages in the whole amount to 8l. 18s. 4d.;" which expressly adjudges the costs and charges, as well as the damages assessed by the jury, but miscalculates the amount of the damages and costs found by thein. The judgment is complete for the damages, costs, and charges assessed by the jury, without the words at “ 11. 8s. 6d.” which being a mere miscalculation and unnecessary, may be rejected as surplusage. So the additional words, " which said damages in the whole amount to 81. 185. 4d." contain anolher miscalculation, and being unnecessary, may be also considered as surplusage. This therefore, will not vitiate the previous judgment, which was before complete, as well for the dainages, costs, and charges assessed by the jury, as for the costs of increase.

Judgment affirmed.

(a) 9 Vin, Abr. tit. Error. (B. b) pl. 34. 576.

1922.

referred back

PAYNE v. BAILEY,

Monday,

May 20th. This was an action brought against the defendant, as where the sarety, on the joint and several bond of the defendant tained a verand one Richard Lough, the principal, and John Selby, dict subject to the other surety, dated the 27th February, 1819, in the and the arbi

trator awarded penal sum of 4000l. conditioned for securing the payment in favour of the of three several acceptances of the said Richard Lough made a matetherein mentioned, being the principal sum due to the rial

his award, on plaintiff from the said Richard Lough, on the dissolution which the

plaintiff applied of a co-partnership, one of which acceptances, for the to the Court, sum of 766l. 9s. Id. was payable two months from the that it might be date of the bond, and the above action was brought to to the arbitrator enforce the payment of that sum, as the first instalment, his award, but the other acceptances not being then due. The defend- would not acant pleaded, first, the general issue ; secondly, that the cede : on which

the Court orbond was obtained by fraud, covin, and misrepresenta- dered the rule tion, by the plaintiff and certain other persons in collusion be discharged, with him; and lastly, that the bond was obtained by and the verdict fraud, covin, and misrepresentation ; upon which seve- be set aside,

and the plaintiff ral pleas issues were joined.

having taken At the trial of the cause before Lord Chief Justice the cause dowa

to a second Dallas, at Guildhall, and a special jury (obtained at the trial, and again

obtained a verinstance of the defendant), at the Sittings after Trinity dict :-Held,

that he was en Term, 1819; after the defendant's case had been partly titled to the gone into, a general reference to a barrister was suggested, costs of both which was acceded to by counsel; and it was thereupon ordered by the Court, with the consent of all parties, that a verdict should be entered for the plaintiff for 4000l. debt, and 1s. damages, subject to the award of a barrister, to whom all matters in difference between the parties were referred : and it was also ordered, that the costs of the suit to be taxed, should abide the event of the

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award; and that the costs of the reference and award, and of the special jury to be taxed, should be in the discretion of the arbitrator.

The reference was proceeded in, and the plaintiff, in addition to the sum of 7661. gs. Id. for the recovery of which this action was brought, claimed before the arbitrator the remaining instalments on the bond, amounting together to the sum of 23371., exclusive of interest thereon, under or by virtue of the said principal bond, together with the sum of 1221. under and by virtue of another bond entered into by the defendant and the said two other persons, to indemnify the plaintiff against sundry copartnership debts which were to be paid by the said Richard Lough; the plaintiff having been called upon to pay, and having paid that sum, one moiety of which, being 61l. the plaintiff claimed from the defendant, as one of the sureties under the indemnity bond, in addition to one moiety of the principal and interest under the principal bond before mentioned'; the liability of each surety on both the bonds being limited to one moiety of the amount of the sums thereby respectively secured.

The arbitrator made his award in writing, pursuant to the order of reference, and thereby found each of the issues joined between the parties, for the plaintiff, and awarded that a verdict should be finally entered for him for 611. debt, and Is. damages; and that the costs and charges of his award should be paid by the parties in equal proportions, and that each of them should bear his own share of the remaining costs and charges of the reference; and that the cause was a proper cause to be tried by a special jury.

The arbitrator, through mistake or error, altogether omitted the instalments and sums secured by the principal bond; and having directed a verdict to be entered for the plaintiff in this action for one moiety of the sum claimed under the indemnity bond only; the plain

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