the said plaintiff and with his assent, which said damages in the whole amount to 81. 18s. 4d.; and the said defendant in mercy, &c. The defendant in his assignment of false judgment, said, that it is not stated or alleged, nor does it appear in and by the said first and last counts of the said declaration, that the potions, draughts, ointments, medicines, and other necessaries in those counts respectively mentioned, were used, administered, or applied by the plaintiff on the occasions therein mentioned, within the jurisdiction of the county Court aforesaid; and also in this, that the consideration of and for the said supposed promises and undertakings in the said declaration mentioned, does not appear, nor is it stated or alleged in and by the said declaration, to have arisen or happened within the jurisdiction of the said Court; nor is it stated in the record who were the suitors of the same Court on the several occasions in the said record mentioned; and he prayed that the said judgment, for the above and other defects in the record, might be reversed and altogether held for nothing, as being false and of no effect; and that the defendant might be restored to all things which he had lost by occasion of the said judgment, &c. To this assignment there was a joinder by the plaintiff; and the cause came on for argument on a former day in this Term, when Mr. Serjeant Lawes, for the defendant, stated, that there were two objections; one to the form of the declaration, and the other to the judgment. First, the declaration is bad, as it omitted to state that the potions and other medicines had been used or applied by the plaintiff within the jurisdiction of the county Court. The whole of the consideration, therefore, does not appear to have arisen within such jurisdiction; and Mr. Serjeant Williams, 1822. DUNN CRUMP. 1822. DUNN v. CRUMP. in a note to Peacock v. Bell (a), states that "in actions in inferior Courts, it is necessary that every part of that which is the gist and substance of the action, should appear to be within their jurisdiction ;-therefore the consideration of the promise must be laid in the declaration within the jurisdiction; and the omission of it is error, even after verdict:" and a number of authorities are referred to in support of that position. And in Waldock v. Cooper (b) it was held, that the declaration must allege that goods were sold and delivered within the jurisdiction, as well as that the defendant promised within it. Secondly, the objection to the judgment is unanswerable, as it is not co-extensive with the verdict; it ought to have been for 17. 9s. 6d., being the damages and costs assessed by the jury; and the judgment improperly states that they were assessed at 11. 8s. 6d., thereby omitting the sum of 12d. assessed for the plaintiff's costs; and which consequently vitiates it altogether. The judgment must be either reversed or affirmed; and whether the damages therein stated be too large or too small, the objection is equally tenable; for in Rex v. Salomons (c) the Court said, "a judgment for too little is as bad as a judgment for too much." In Heines v. Guie (d), in error on a judgment in assumpsit in the Tewksbury Court, where the jury gave a verdict for 87. damages, and 2d. costs; and the judgment was entered that the plaintiff should recover his damages assessed by the jury to 81.; and also 20s. for costs de incremento, omitting the 2d. given by the jury for costs; for that cause the judgment was reversed. In Rolle's Abridgment (e) it is said, that "if the error be the default of the Court, though it be for the advantage of the party, yet the (a) 1 Wms. Saund. 74, n. 1. 252. (b) 2 Wils. 16.- (c) 1 Term Rep. (d) S. C. 10 Vin. Abr. tit. Error. (I. c. 12.) pl. 3. Yelv. 107. (e) Vol. I. tit. Error. (Y) 1. 35. 759, S. C. Bac. Abr. tit. Error. (K) 4, 220, party that hath the benefit by it may assign it for error; for the course of the Court ought to be observed." So in Beecher's Case (a) it is stated, that "divers judgments have been reversed in the King's Bench, because the judg ment was ideo in misericordia, where it should be capiatur; and yet it was for the parties advantage; but because the judgment was erroneous, and the error of the Court in giving it; for this cause it hath been often adjudged that it is not amendable, but that the whole judgment, shall be reversed." So in Holmes v. Twiste (b), it was adjudged, that if in an action of debt it be found that the defendant owes the plaintiff 57. and the jury assess damages to 2d. and costs 2d. and after judgment is given, that the plaintiff shall recover debitum et damna prædict' to 2d. and no judgment is given for the costs; though this is for the advantage of the defendant, yet he may assign it for error; because this is the error of the Court to alter the manner of judgment:" and the, judgment was reversed accordingly. So also, in Bacon's Abridgment (c), a distinction is taken as to what judgment shall be given on the reversal of the first, viz. that "if judgment be given against the defendant, and he brings a writ of error, upon which the judgment is re-, versed, the judgment shall only be quod judicium reversetur; for the writ of error is brought only to be eased and discharged from that judgment. But if judgment be given against the plaintiff, and he brings a writ of error, the judgment shall not only be reversed, but the Court shall also give such judgment as the Court below should have given; for the writ of error is to revive the first. cause of action, and to recover what he ought to have recovered by the first suit, wherein erroneous judgment was given." Here it is quite clear that there is either an (a) 8 Rep. 59 (a).- (b) 2 Bac. Abr. tit. Error, (K) 4. 220. S. C. 1 Rol. Abr. tit. Error. (Y) 2. 1. 40, 759.- -(c) tit. Error. (M) 2. 230. 1822. DUNN บ. CRUMP. 1822. DONN V. CRUMP. error in the judgment, in point of computation, or an omission of the costs assessed by the jury; in either of which cases the judgment is erroneous; and as it was given against the defendant below, the Court have no power to alter or give a right judgment, which they might have done if it had been found against the plaintiff below. Mr. Serjeant Peake, contra. Although the rule laid down in Beecher's Case may be in strictness correct, yet Mr. Justice Buller, in Gamon v. Jones (a), said, that "it is an invariable rule, that if a judgment be more favourable for the plaintiff than he is entitled to, he cannot take advantage of it, because he is not injured by it." In Rolle's Abridgment (b) it is said, that "if a jury find for the plaintiff, and give 2s. damages, and so much for the costs, and the clerk, in the entering thereof, says 2s. for damages and so much for costs, and so much pro incremento qua in toto se attingunt to so much, in which sum the 2s. is not comprehended; this shall be amended, because it is the default of the clerk only in miscasting the total sum." In an Anonymous Case (c) it was decided, that if a judgment be below for the plaintiff, and error is brought, and that judgment reversed; yet if the record will warrant it, the Court ought to give a new judgment for the plaintiff: but if the judgment be erroneous, and against the plaintiff on the merits of the cause, that ought to be reversed, and no new judgment given for the plaintiff. If an erroneous judgment be given for the defendant, and it is reversed, and the merits appear for the plaintiff, he shall have judgment: if the merits be against the plaintiff, the defendant shall have a new judgment; for the Court are to reform as well as (a) 4 Term Rep. 510.- (b) Vol. I. tit. Amendment. (F) 1. 45. 205. S. P. Com. Dig. tit. Amendment. (R). ----- (c) 1 Salk. 401. to affirm or reverse it. In Williams v. White (a) it was determined, that if there be several distinct and independent judgments, the reversal of the one shall not affect the other. And in Short v. Coffin (b), the Court allowed a judgment against an executor de bonis propriis to be amended, by making it de bonis testatoris si, &c., after error brought, and argument in the Exchequer Chamber. [Mr. Justice Richardson. In Heines v. Guie, the case of Anger v. Brookhen (c) is referred to, which came twice before the Court; and where it was decided, that on a verdict for 1007. damages and 6d. costs, a judgment entered quod recuperet dumna sua ad centum libras, et pro incremento 10l., without taking notice of the 6d. costs, was bad:-and a reference is there made to the cases of Daur v. Fellowes and Osborn v. Exton (d), which the Court held to be in point, and made a rule accordingly.] Mr. Serjeant Lawes, in reply. Although it has been said, that the Court may amend the judgment, or give such judgment as the Court below should have given; still the rule applicable to this case cannot be contradicted, viz. that if judgment be given against the defendant, and he bring a writ of error, upon which the judgment is reversed, the judgment shall only be quod judicium reversetur; for the writ of error is brought only to be eased and discharged from that judgment (e). The case of Anger v. Brookhen is precisely in point; and although a quare is added by the reporter at the conclusion of it, yet it does not affect the judgment of the Court. Beecher's Case contains the leading principle as applic (a) Cro. Eliz. 806.- (b) 5 Burr. 2730.- 7th edit. 1228. (c) 2 Show. 56, 88, (ƒ). 1822. DUNN V. CRUMP. |