Eames v. Stevens

Eastman, J.

The first error is not well assigned. In an action of .trover the body is not exempt from arrest. The power to arrest in this action has not been changed by our statute abolishing imprisonment for debt, and it remains as at common law. It is immaterial, therefore, whether a defendant be arrested on mesne process or not; the execution-. may run against the body, and an arrest may be made upon ■ it, however the service of the original writ may have been.

The second assignment is equally untenable. It does not appear by the record, or by any bill of exceptions filed, that the plaintiffs in error desired a separate trial. This would be a sufficient answer to the error assigned.

*121 But defendants, by pleading severally, do not as a matter of right thereby entitle themselves to several trials. It is within the discretion of the court which tries the case to say whether separate trials shall be had or not Sawyer v. Mer rill, 10 Pick. 18 ; Dougherty v. Dorsey, 4 Bibb 207 .

The third error assigned is, that the verdict does not follow the pleadings, and this, upon a strict grammatical construction of the form of the verdict, is correct. Inasmuch as the defendants severally pleaded not guilty, it would have been more strictly in accordance with the issues for the jury to have said, “ the jury find that the said Barnes is guilty, and the said Tuttle is guilty, and assess damages,” &c., instead of saying as they do, “ and the said Eames and the said Tuttle are guilty,” &c. But this, at best, is only an error in form, which does not affect the substance of the verdict, and both by statute and at common law, is not a ground for reversing the judgment. The statute provides that no writ, declaration, return, process, judgment or other proceeding in the courts or course of justice, shall be abated, quashed or reversed for any error or mistake, where the person or case may be rightly understood by the court, nor through defect or want of form or addition only; and courts may, on motion, order amendments in any such case. Rev. Stat. ch. 186, § 10.

The fourth, fifth and sixth errors assigned may all be included under one. The position is, that the judgment has been erroneously made up, and in this, we think, the plaintiffs in error are correct.

The suit was brought against both, jointly, for a joint conversion of the properly. They pleaded severally, and if on the trial the jury had. found the defendants severally guilty, and had severed the damages, or if separate trials had been had, and the damages severed in the verdicts, judgment for the damages must have been entered accordingly. Kempton v. Cook, 4 Pick. 305 .

But it seems that had several suits been brought, against *122 each of the parties, and the jury returned damages in each case for the whole wrong done, the plaintiff could have taken execution at his election against one only for the damages jointly, for he could have but one satisfaction, although he could recover costs in each suit, since he hada cause of action against each. Livingston v. Bishop & als. 1 Johns. 290 ; Bird v. Randall, 3 Burrows 1345.

In this case.the jury, by their verdict, assessed the damages against both defendants. To this there could be no objection, notwithstanding the several pleas, for the action was against them jointly, and both were tried at the same time; and if the jury believed that the tort complained of was joint, they should so find. Bohun v. Taylor, 6 Cowen 313; Proprietors of Kennebeck Purchase v. Bolton & al. 4 Mass. Rep. 419.

If there was any evidence tending to show a several conversion; the jury were undoubtedly instructed at the trial that, they could acquit one of the defendants, and render their verdict against the other.

So far as the damages are concerned, the judgment, having been entered against both of the defendants, jointly, according to the verdict, is to that extent correct.

But the plaintiff, in the court below, should have taxed 'but one bill of costs, and that should have been a joint one against both defendants. They were sued jointly and tried jointly, and, as a general principle, the costs recovered by a plaintiff are an entire thing. Pro. Ken. Purchase v. Bolton & als. 4 Mass. Rep. 419.

In Kempton v. Cook & al. 4 Pick. Rep. 305, the defendants, in action of trespass, pleaded, severally, the general issue, and the jury assessed several damages against them. .The court held that one execution should issue against both for the costs, and separate executions for the several dam.ages against each.

Perhaps, had there been separate trials, separate executions might have issued for such costs as were specially in *123 eurred by means of the several trials. In Mason v. Waite & al. 1 Pick. 458 , Parker, C. J. says: “ It is true, the plaintiff can recover but one bill of costs in most cases, though, if there were several trials, he would have a right to tax in his bill the court and jury fees on each trial.

This view of the question does not infringe upon the rule that where, in actions of tort, the defendants plead severally and prevail, they shall have each his costs. Crosby v. Lovejoy, 6 N. H. Rep. 458 ; West v. Brock & al. 3 Pick. 303 . Nor upon the reason of the rule, for in such cases the defendants do not have full costs. Each is allowed his travel and- attendance and attorney-fee; but the expenses of the witnesses, and all other charges, are single, and may be distributed among the defendants, according to the advances made by each, or the whole may be put into one bill. Mason v. Waite & al. 1 Pick. 452 ; West v. Brock & al. & Pick. 303; Crosby v. Lovejoy, 6 N. H. Rep. 458 .

If the defendants plead jointly, they are content to remain upon the record as one person, and can have but one bill of costs. Ewer v. Beard & al. 3 Pick. 64 ; West v. Brock & al. 3 Pick. 303 ; Crosby v. Lovejoy, 6 N. H. Rep. 458 .

If they plead severally, the presumption is that each person has a defence for himself, and he, therefore, attends court as a separate party; and, in case he prevails, he should have such costs as he, as an independent party, has been put to. Whereas the plaintiff is but one party, and he attends court only as such in the same suit, let the form of the pleas be what they may.

As a general rule, a judgment being an entire thing, cannot regularly be reversed for part and affirmed for the residue. 2 Bac. Abr. Error, M. 1; 2 Ld. Raymond 825; Croke James 424; Roll. Abr. 776.

But where there are several distinct and independent judgments, the reversal of one will not affect the others. 2 Bac. Abr. Error, M. 1; 2 Strange 807; 2 Ld.-Raymond 1532.

*124 So, also, if the judgment consists of several distinct and independent parts, and one is erroneous, it may be reversed as . to the erroneous part and affirmed as to the other. 1 Strange 188; 5 Cowen* 654; Cummings v. Pruden, 11 Mass. Rep. 206 .

In this case, the judgment consists of independent parts. That part which was made up for the damages is right and must be affirmed, and that which was entered for the costs is erroneous and must be reversed.

On the reversal of a judgment, this court will give such judgment as the court below should have given, the record being here for every purpose of giving a perfect judgment. Pangburn v. Ramsey, 11 Johns. 141 ; 12 Johns. 68 ; 2 Tidd’s Prac. 1130; Howe’s Prac. 488.

So far, then, as the costs in the court below are concerned, the judgment is reversed: and the defendant in error being entitled to one bill of costs against both of the plaintiffs in error, judgment must be entered for him accordingly.

In the proceedings in this court, the plaintiffs in error are the prevailing party, and should recover costs. These, how» ever, should be set off and deducted from the costs to which the defendant in error is entitled upon the proceedings in the court b'elow.

If the executions which were issued for the costs have been collected, the plaintiffs 'in error will also be entitled to judgment for restitution for the sum collected. This may be effected by application to the court, on establishing the facts by affidavit. Saffon v. Stevens 2, Wendell 158. On a reversal of judgment, a party is to be restored to all things which he has lost by the judgment in the court below. Pangburn v. Ramsay, 11 Johns. 143 .

The decision of the court, then, is, that judgment be affirmed for the damages, and reversed as to the costs; and that there be judgment for the defendant in error against the plaintiffs in error, jointly, for the costs in the court below, *125 deducting therefrom the costs of the plaintiffs in error in this court.

It is suggested that an injunction has been issued against the collection of the several executions that have been issued. As to the execution for damages, it will be dissolved; and as to those for costs, it will be made perpetual.