October 1, 2012

Taul v. Moore, Pulaski, 1807

Taul v. Moore

COURT OF APPEALS OF KENTUCKY

3 Ky. 96; 1807 Ky. LEXIS 10; 1 Hard. 96

March, 1807, Decided

PRIOR HISTORY:  [**1]  This was an action of debt, on a single bill; judgment by nil dicit, and writ of inquiry; verdict for plaintiff for the debt in the declaration mentioned, and one penny damage. Judgment thereupon was entered for "four hundred dollars, the debt in the declaration mentioned; the damages aforesaid by the jurors aforesaid in their verdict assessed, and his costs about his suit in this behalf expended; and the said defendant in mercy, etc.

"NOTE.--The said four hundred dollars, the debt in the declaration mentioned, is to bear legal interest from the 1st day of October, 1803, until paid, and costs. But to have credit," etc., for several sums paid at several dates.

Upon this judgment Taul sued out a writ of error, and obtained a supersedeas, assigning for error:
First. The jury have found one penny damages, and judgment is entered for interest from the time the note declared on became due.

Second. The judgment is not warranted by the finding of the jury.

Third. It was illegal to render judgment for interest.

Fourth. But if it was not illegal, the manner in which it has been entered up is informal and contrary to law.

DISPOSITION: Judgment affirmed. 

COUNSEL: CLAY for plaintiff.  [**2]  --The judgment is erroneous as to interest. As the jury did not find more than one penny damage, no more could be recovered in addition to the debt. The universal practice, almost without exception, has been for the juries to find the interest in damages, on single bills; and not having found more here, the court ought to presume that they had proof of the payment of the interest.

BIBB contra.--I rely upon the act of the Kentucky legislature, as placing single bills on the same standing as penal bills (see Acts of 1799, ch. 17, § 2, page 41). And upon the latter the general and regular practice, is, for the jury to find nominal damages a cent or a penny, and judgment is then entered for the penalty, being the debt in the declaration, and the damages by the jurors assessed, and costs. Then comes the condition, that the judgment may be discharged by the principal sum, with interest thereon, together with the damages assessed, and the costs; and if any payments have been made, the respective dates and sums are noted; so that the judgment in this case has been entered by a skillful and intelligent clerk, in strict form, and agreeable to the right of the case.

As to the presumption [**3] contended for, that proof of payment of the interest induced the jury to find no more damage, I reply, that the same presumption would equally hold as to verdicts on penal bills: but such presumption is repelled in this case by the note of the several credits. Moreover, if due proof of other payments had been offered to the jury, and not allowed by them, or not attended to by the clerk in entering up the judgment, inasmuch as all proof is in presence of the court, the first case would have been the proper ground of a motion for a new trial, and the latter for correcting the misprision or oversight in entering the judgment: but this record does not exhibit either case, and this court can not presume premises whereby to reverse a judgment. Every thing is to be presumed in support of it, but nothing against it.

CLAY, in reply.--The act cited is only directory to the clerk, not to the court. It only applies where an office judgment is confirmed by the clerk, who is the ministerial officer of the court, without the intervention of a jury, It does not appear to be applicable to the present case. In cases of single bills, where the payments have exceeded the interest, the mode practiced [**4]  has been for the juries to find the debt, to be discharged by the balance in damages. 

JUDGES: GRUNDY, Ch. J. 

OPINION BY: GRUNDY 

OPINION

[*98]  GRUNDY, Ch. J., delivered the following opinion of the court: In this case the plaintiff in this court had, on the 28th day of June, 1803, executed to the defendant his single bill, under seal, for the payment of four hundred dollars, on the 1st day of October next ensuing the date of said writing. On this obligation suit was brought in the Pulaski circuit court, and the jury who were called to assess the damages upon a writ of inquiry found for the plaintiff four hundred dollars, the debt in the declaration mentioned, and also one penny damages, besides his costs; upon which verdict the court entered judgment for the debt in the declaration mentioned, and also the legal interest on that sum from the time the same was due and payable, until the payment should be made. The single question for the decision of this court is whether the court were justified by the verdict in entering such judgment? This court will observe, that the same reasons which influenced the decision in the case Littell v. Hord, 2 upon the question of interest there made,  [**5]  apply with equal force in this case; for it evidently appears from the act of assembly passed in 1799, that single bills were intended, as to interest, to be put upon the same footing with penal bonds; and upon such a finding of the jury on a writing of the latter description, it has always been the practice to find the verdict as in this case, and to enter  [*99]  up a similar judgment. And were the court to determine, as has been contended, that the jury should find the interest in damages, the consequence would be, that notwithstanding the legislature have declared that all debts founded on any specialty, bill or note, in writing, ascertaining the demand, shall carry interest in the same manner as debts due on a bond or bill with a penalty, under seal; we should, in direct opposition to this legislative declaration, say that they should not carry interest in the same manner; for were the jury to find the interest in damages, the creditor would lose all the interest accruing between the rendition of the verdict and the payment of the money, or at least until a replevy bond was given.

Judgment affirmed.

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