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Section 8




Sneed 269.

It is assigned as an error in this suit that "the writ and declaration are in case, and the verdict and judgment are in debt."

The court finds that the writ is trespass on the case in the usual torm; and the declaration also seems to be in case, although it is not altogether in the usual form, and, perhaps, is deficient in substance. It is at least certain that it is not a declaration in debt. But the verdict and judgment could only have been authorized by a declaration in debt. In particular, the judgment is for a certain sum and interest thereon from the time it became due until paid, whereas, in an action on the case, the verợict and judgment could only have been for an aggregate sum in damages, including interest, until the time they were rendered, and not for any interest thereafter. Therefore, it is considered by the court that the judgment aforesaid be reversed and set aside, the cause be remanded to the circuit court for new proceedings to be had, to commence by amending the declaration, and the plaintiff (in error] recover of the defendant [in error] his costs in this behalf expended, which is ordered to be certified to the circuit court.

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In this action of assumpsit the plaintiff took a verdict for 611 l. which was really the sum due to him, and entered up judgment for that sum beside costs, but the damages laid in the declaration were but 600 1. A writ of error was brought on this judgment, and Kerby, Serjt. obtained a rule to show cause why a remittitur of the 11 l. should not be entered. Adair and Le Blanc, Serjts, argued against the rule, saying, that after judgment signed and error brought, it was too late to enter a remittitur for the sum which caused the error;

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1 As to the necessity of conformity of the judgment to the pleadings, see also Reynolds v. Stockton, 140 U. S. 254, 265–266 (1891).

2 Reporter's footnotes omitted.

and they cited the case of Sandiford v. Bean, B. R. Hil. 13 Geo. 3, as an authority in point. Kerby, on the other side, insisted, that as long as the record remained in court it might be amended.

THE COURT thought it was reasonable to allow the amendment, and therefore made the rule absolute upon payment of the costs of the writ of error.1


At common law the successful party to an action is ordinarily entitled to costs against the other as a matter of right. If the plaintiff succeeds, he recovers a judgment for the amount of the jury's verdict plus costs; if the defendant succeeds, he recovers a judgment against the plaintiff for costs.3

In England, costs include reasonable counsel fees to the successful party. In some cases of protracted litigation costs in the English courts are very large indeed, partly for this reason. In the United States, however, costs are ordinarily restricted to court expenses, witnesses' fees, printing on appeal, and the like. Counsel fees are allowed only by statute, and then rarely and in few special cases.5 What may be included in costs and how costs are to be taxed is usually provided for in detail by statutes in the various states. 6

Rule 54 (d) of the Federal Rules of Civil Procedure (1938) provides as follows: "Except, when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court

1 Suppose that the ad damnun of the declaration is $2000, that the jury brings in a verdict for the plaintiff for $1500, and that the court enters judgment for $1200 ? See Brown v. McLeish, 71 Ia. 381, 383 (1887). Compare Rule 54(c) of the Federal Rules of Civil Procedure, which provides in part as follows: "Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.” Cf. Ch. XIX, § 1, infra.

Rule 60(a) of the Federal Rules provides: "Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders."

2 The student is advised to read Goodhart, “Costs”, 38 Yale L. J. 849 (1929).

3 See Note, 41 Harv. L. Rev. 654 (1928). As to costs in equity, see Ch. XIII, 36(3), 87, infra.

4 For example, in Graigola Merthyr Co. v. Swansea Corp., 45 T. L. R. 219 (H. L. 1929), the costs payable to the defendant by the unsuccessful plaintiff amounted to over $350,000.

5 See a brief comparative discussion of the English and American systems in Note, 10 Harv. L. Rev. 242 (1896).

6 See, e.g., N. Y. C. P. A. $ $ 1470–1538.


otherwise directs; but costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law. Costs may be taxed by the clerk on one day's notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court.”

In most jurisdictions in some cases the plaintiff has his choice of suing in a court of general jurisdiction, such as the High Court of Justice in England or superior or circuit courts in the United States, or in a less expensive court of limited jurisdiction, like the English county courts or the municipal courts in many American cities. If he chooses the more expensive form, he may even if successful lose his costs entirely or recover them only on the lower court scale. This is a matter of statutory regulation in the various jurisdictions concerned.


Under certain circumstances judgment may be entered nunc pro tunc so as to be effective from a prior date. So an entry of judgment is proper, for example, when no judgment was rendered through the mistake or delay of the trial court which had power to enter judgment, or when judgment was rendered but never entered due to the carelessness of the court. The power thus to enter judgment is often important when the plaintiff dies after trial but before judgment is entered, where the action is one which abates with the plaintiff's death as in the case of an action for a personal tort in most jurisdictions.3

Judgment may be entered nunc pro tunc even after the expiration of the term of court in which judgment should have been rendered. When entered it is effective retroactively as between the parties and persons who take the subject matter of the suit from a party with notice or as donees, but not as against purchasers for value without notice.


1 See 1 Freeman, Judgments (5th ed. 1925) $ $ 121–139; Cook, “Corrective Entries Nunc pro Tunc,” 3 la. L. Rev. 241, 426 (1928).

2 See H. Gund & Co. v. Horrigan, 53 Neb. 794 (1898).

3 Abatement of the action is avoided by entering judgment nunc pro tuno as of a time when plaintiff was still living and “when the judgment might have been entered on the verdict." Currier v. Inhabitants of Lowell, 16 Pick. 170, 173 (Mass. 1834) (entry of judgment delayed by motion for new trial). See also Stickney v. Davis, 17 Pick. 169 (Mass. 1835); Wilkins v. Wainwright, 173 Mass. 212, 214 (1899).

4 See Clark & Leonard Invt. Co. 2. Rich, 81 Neb. 321 (1908).


RULE 6 (c). The period of time provided for the doing of any act or the taking of any proceeding is not affected or limited by the expiration of a term of court. The 2 expiration of a term of court in no way affects the power of a court to do any act or take any proceeding in any civil action which has been pending before it.3

1 The title of Rule 6 is "Time"; that of paragraph (c) is, “Unaffected by Expiration of Term."

2 Second Preliminary Draft of Proposed Amendments to Rules of Civil Procedure for the District Courts of the United States (1945) 1,, here inserts "continued existence or."

3 As to the common-law effect of the expiration of a term of court on the court's power to relieve against a judgment, see United States v. Mayer, 235 U. S. 55 (1914).


COKE ON LITTLETON (1628) 288 b. “A writ of errour". This writ lyeth when a man is grieved by an error in the foundation, proceeding, judgment or execution, and there.. upon it is called, breve de errore corrigendo.. But withoựt a judgment, or an award in nature of a judgment, no writ of error doth lie; for the words of the writ be, si judicium redditum sit, and that judgment must regularly be given by judges of record, and in a court of record, and not by any other inferior judges in base courts, for thereupon a writ of false judgment doth lye.

FORM OF WRIT OF ERROR.2 Tidd, Forms of Practical Proceedings (7th ed. 1828) 501. GEORGE the Fourth, by the grace of God of the united kingdom of Great Britain and Ireland king, defender of the faith. To our right trusty and well beloved Charles Lord Tenterden, our chief justice assigned to hold pleas in our court before us, greeting: Because in the record and proceedings, and also in the giving of judgment, in a plaint which was in our court before us, by our writ, between A. B. and C. D. late of —-, of a plea of trespass on the case, (or, as the plea is,) as it is said, manifest error hath intervened, to the great damage of the said C. D. as by his complaint we are informed: We being willing that the error, if any there be, should in due manner be corrected, and full and speedy justice done to the parties aforesaid in this behalf, do command you, that if judgment be thereupon given, then without delay you distinctly and openly send, under your seal, the record and proceedings aforesaid, with all things touching the same, to us in our present parliament, (or, if the parliament be not then sitting, "at the next session thereof, to wit, on the day of next ensuing, to be holden,") and this writ; that the record and proceedings aforesaid being inspected, we may further cause to be done thereupon, with the assent of the lords spiritual and temporal in the same parliament, for correcting that error, what of right, and according to the law and custom of England, ought to be done.

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1 The writ of false judgment lay to county courts, national courts, and other courts not of record, for review by the Court of Common Pleas. For forms, for the writ and other proceedings thereon, see Tidd, Forms (7th ed.) 559-567.

2 This is the form for a writ of error to the King's Bench for review by the House of Lords. For other common law forms, see Tidd, Forms (7th ed. 1828) 499-504.

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