{ "id": 8687891, "name": "Jesse Battle, adm'r. v. John Rorke", "name_abbreviation": "Battle v. Rorke", "decision_date": "1827-06", "docket_number": "", "first_page": "228", "last_page": "232", "citations": [ { "type": "nominative", "cite": "1 Dev. 228" }, { "type": "official", "cite": "12 N.C. 228" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "3 Hen. 8", "category": "reporters:state", "reporter": "Hen. & M.", "opinion_index": -1 }, { "cite": "1 Mur. 502", "category": "reporters:state", "reporter": "Mur.", "case_ids": [ 11277313 ], "opinion_index": 0, "case_paths": [ "/nc/5/0502-01" ] }, { "cite": "2 D. 9", "category": "reporters:state", "reporter": "Dall.", "opinion_index": 0 } ], "analysis": { "cardinality": 451, "char_count": 7589, "ocr_confidence": 0.338, "pagerank": { "raw": 2.005531161889054e-07, "percentile": 0.7435450869915582 }, "sha256": "7779ece141a2c1888d82828632ad4ef81a7d393929a3849a32fbb8714dc03a5d", "simhash": "1:352f89e80f7f7ecd", "word_count": 1358 }, "last_updated": "2023-07-14T19:44:07.907129+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Jesse Battle, adm\u2019r. v. John Rorke." ], "opinions": [ { "text": "Tayeor, C(lief-Justice.\nThis case depends upon the construction of the act of 1777, concerning costs, and the principles of pleading as applicable to the particular defence relied upon by the administrator. The act provides, that in ail cases whatsoever, the party in whose favor judgment shall be given, shall be entitled to full costs, uuless where it is or may be otherwise directed by statute. Was judgment given in favor of the Defendant in the original action ? No rule of pleading is better \u00b0 \u00b0 settled at common law, than if the Plaintiff joins issue upon the plea of plene administravit, and it be found against him, the judgment is that he take nothing by his bill, Jn such case, the Defendant goes without day, and the Plaintiff is concluded from all further proceeding against him. It is only where he confesses the plea to be true, thpt the Plaintiff is entitled to a judgment quan-do. (Cro. Cur. 373. Comyn\u2019s Pleader 2 D. 9.) It has also been lately decided, in the case of Hogg v. Graham, cited from 4 Taunton, 134, that if upon the pleas of non assumpsit and plene administravit, the Plaintiff joined' issue, and omitted to pray judgment of assets quando, the first Issue being found for the Plaintiff, and the second for the Defendant, the Defendant is entitled to the postea and general costs.\nAn exceptionto the rule of praying judgment quando is made by our act of 1794, in those cases where the administrator sells upon a credit, and the money has not been recen ed at the time of trial. There it shall be liable to the satisfaction of judgments previously obtained, and entered up as judgments when assets should come to the hands of the executor or administrator. It is necessary however, in that case, to bring the administrator in again upon a scire facias. \u2014 As to the question of costs, it was decided in Wellborn v. Gordon, (1 Mur. 502) to which the practice has since conformed.-1-think the judgment should be affirmed.\nPer curiam. Judgment affirmed.", "type": "majority", "author": "Tayeor, C(lief-Justice." } ], "attorneys": [ "W. H. Haywood, for the Appellant.", "Beverenx, contra." ], "corrections": "", "head_matter": "Jesse Battle, adm\u2019r. v. John Rorke.\nFrom Wake.\nA Judgment quando is a Judgment in frvor of tlie Defendant, who is therefore entitled to his costs.\nError from the Superior to the County Court, and upon the return the case was, that the Plaintiff in error had in the County Court plead non assumpsit, payment, a set-off and plene administraron, to an action brought by the Defendant in error. Thp Jury found a verdict for the Plaintiff below upon the three first pleas, and for the Defendant upon the last. Judgment quando was entered up for the damages and costs of the Plaintiff below, and s< as to the costs of the Defendant in this behalf expended, it is considered that lie be without day, &c.\u201d\nThe error assigned was, \u201c that the judgment aforesaid, in form aforesaid, was given for the said Jesse Battle, against the said John Enrke, but by the judgment aforesaid, the said Jesse Battle does not recover his costs and charges, &c.\u201d\nHis honor Judge Paxton, on the Spring Circuit of 182,6, reversed the judgment and awarded restitution. Whereupon the Defendant in error appealed.\nW. H. Haywood, for the Appellant.\nThe whole doctrine of costs at law, is to be derived from our act of 1777, by which it is enacted, that in \u201c all actions whatsoever the party in whose favor judgment shall be given shall be entitled to full costs, &c.\u201d and so here, since the Plaintiff in error was not entitled to judgment, he cannot recover costs. (Rev. Code, 318, c. 115, s. 90).\nThe Defendant in error was entitled, upon the pleadings and verdict, to a judgment quando. If there were any doubt of this at common law, our act of 1794 expressly ' recognizes it, and the uniform practice of the Courts in this State supports such exposition of the law. (Rev. Code, 754).\nIt is no answer to say, that it is a hardship upon the administrator to compel him to pay the whole costs, when he has supported his plea of plene adminisiravit; for it is equally a hard case upon the creditor who loses his debt, to require of him to pay also the costs of the administrator.\nThe cases to be found in the English books are not authorities here, because by the Stat. 2.3 Hen. 8, c. 15, the costs are regulated by the verdict, and not by the judgment. (2 Bacon\u2019s Jib. Gwillim\u2019s cd. p. 44). F It is not contended by the D efe ml ant in error, that he has aright to recover his costs of the Plaintiff in error, but that he must have judgment for them quando, as well as his debt; and that the administrator can have no costs against him, for he has and is entitled to, judgment \u2014 the form of which it is submitted cannot be material under the act of 17-77.\nBeverenx, contra.\nAccording to the rules of pleading, a Defendant in whose favor tiio issue of viene admi-stravit is found, is entitled to judgment, that the Plaintiff take nothing by his bill.\nThis is in strict accordance with the form of the plea, which begins with \u00bf\u00a1dio non, and concludes with a prayer of judgment whether the Plaintiff ought to have and maintain, &c.\nIn England, judgments quando are only entered up when the Plaintiff, in his replication, admits the truth of the plea, and prays judgment quando; or where, on. the trial, hefixes the Defendant with assets, although to a very small amount. In the.last, case, he obtains judgment and execution for the amount of assets and for his costs; with an entry of judgment (\u00a1'Mando as to the residue.\nThe rule was not thus settled without difficulty ; some Judges contended in the first case, that the Plaintiff having confessed a matter which was a complete bar, he was out of Court i in the latter, it was insisted, that as he had negatived the plea, every plea being an unit, he was entitled to judgment and execution for his whole debt. (Shipley\u2019s case, 8 Hep. 134 \u2014 Dorchester v. Webb, Cro. Car. 372 \u2014 Noel v. \u00a1Nelson, 1 Vent. 94. Per Hobart argu-endo in Brickhead v. Archbishop of York. Hob. 197, 199, Wentworth 274 to 276).\nIt is clear, from the modern cases, that the Plaintiff, where he does not fix the Defendant with assets, the is\u00bb sue of plena admiimlravit being found for the latter, id out 0f Court as to that action, and it is not clear but that lie is forever barred. At all events the Defendant recovers Ids costs. (Hogg v. Graham, 4 Taunt. 135\u2014 jiagg v. Wills, 8 do. 1\u00bf9). The. rule may be said to be universal, both in England and under our statute of 17/7, that the party who prevails in the action recovers his costs. The difference contended for on the other side, between the verdict and the judgment, is not admitted, and will be found, on examination, to be untenable.\nThe practice in this State has differed from that adopted in England. Judgments quando arc, and always have been entered upon verdicts establishing the amount of the demand, and the truth of the plea of plene admi-nistravit. This practice is conceived to have had its origin in a mistaken construction of the act of 1784, c. 226. This indulgence extended to Plaintiffs can be no reason for subjecting Defendants to costs, who have committed no wrong, and against whom the Plaintiffs have no right \u2014 right and wrong being the mothers of actions. (Per Lord Hobart ubi supra. )\nIf it be objected that the Defendant has caused costs to accrue, by pleading several pleas, the answer is, that by law he has this right. Besides, if there be any thing in it, it must equally extend to'every case where double pleas are put in, as for instance, where in trespass not gxdlty and a special justification are plead, the last of which is found for the Defendant, yet nothing can be clearer than that he recovers his costs on such, a verdict." }, "file_name": "0228-01", "first_page_order": 227, "last_page_order": 231 }