Bowyer v. Hewitt, Ruffner & Co. , 2 Va. 193 ( 1845 )

Cabell, P.

delivered the opinion of the Court.

The judgment, of which the appellees sought to have execution, by their scire facias in the Court below, was for 574 dollars 92 cents damages, with legal interest thereon, from the 7th of December 1838, till paid, and 9 dollars 69 cents costs. To this scire facias, the appellant pleaded nul tiel record, and payment; on which the appellees joined issue. The appellant also tendered several special pleas, which, being objected to by the appellees, were rejected by the Court; to which rejection, however, no exception was taken by the appellant. These special pleas, and the defences which they sought to set up, cannot, therefore, under the decision in White v. Toner ay, 9 Leigh 347, now be considered by this Court. The issue on the plea of nul tiel record having been determined by the Court in favour of the appellees, the only subject left for enquiry, is, as to the correctness of the judgment of the Court below, on the verdict of the jury, upon the issue joined by the parties on the plea of payment. On that issue, the jury “ found for the plaintiff, 647 dollars 85 cents, the debt in the scire facias mentioned, with legal interest thereon, from the 7th day of October 1840, until paid and the Court entered up judgment accordingly.

It will thus be seen that the verdict departs from the scire facias, by finding for the plaintiff the consolidated amount of principal, interest and costs, with continuing interest upon that consolidated amount until paid. This was clearly illegal, in giving interest on interest and costs. But it was also supererogatory in the jury, to find any particular sum for the plaintiffs. The jury were sworn to try the issue on the plea of payment; and having found that issue in favour of the plaintiffs, and thereby negatived the defence set up by the defendant, their functions, regularly, ceased there; and it then became the province of the Court to enter up judgment according to the scire facias. But the jury by transcending the bounds of their rights and duty, by illegally finding for the plaintiffs a larger debt than that stated in the scire facias, did not give to the Court the right, nor impose on it the duty, to enter up a judgment according to the verdict. The Court ought to have regarded that part of the verdict as merely supererogatory, and ought to have rendered a judgment according to the scire facias. The judgment is therefore reversed with costs, and this Court proceeding to give such judgment as the Court below ought to have rendered, it is adjudged and ordered, that the appellees recover against the appellant, the sum of 574 dollars 92 cents damages, with interest thereon from the 7th day of December 1838, till paid, and 9 dollars 69 cents, the costs of the first judgment.