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Ives v. Van Epps. mitigation of damages ; recoupment, as it is more briefly called by the law. See Toml. Law Dict. Recoupe. The defendant proposed to go into the inquiry generally, which was overruled ; and he afterwards urged the propriety of its admission as showing a failure of the consideration for his covenant. But it does not come in under that head. A set-off may arise out of the instrument on which the action is brought, or out of some independent matter. In the case at bar, the referees doubtless rejected the evidence, in the first instance, because they thought it was offered by way of set off; and regarded it as inadmissible in that view, the damages being unliquidated. They were, so far, right. Then, when it was afterwards urged as to making out a failure of consideration in whole or in part, it could not be received. The covenant to pay the $1500 was independent and absolute. It had no connection with performance as a consideration, but more properly stood for this upon the cross covenants. The offer came under the third category, recoupment. Recoupe is synonymous with defalk or discount. It is keeping back something which is due ; because there is an equitable reason to withhold it; see Toml. Dict. ut supra ; and is now uniformly applied where a man brings an action for breach of a contract between him and the defendant; and the latter can show that some stipulation in the same contract was made by the plaintiff, which he has violated, the defendant may, if he choose, instead of suing in his turn, récoupe his damages arising from the breach committed by the plaintiff, whether they be liquidated or not. The law will cut off so much of the plaintiff's claim as the cross damages may come to. In short, the principle established in Reab v. M'Allister, 4 Wendell, 483, applies; and cannot be better explained than it was there by Marcy, J., from p. 490 to 494. When the same case came before the court for the correction of errors, the chancellor considered these cross claims, which he denominates claims in diminution of damages ; and put them on the broad ground of natural equity. He holds that cross claims arising out of the same transaction should compensate one another, and the balance only be recovered. 8.

Klock v. Robinson. Wendell, 109, 115. We have often, of late, acted on this principle, as cases have arisen in various forms; and I thought it had been illustrated by authorities subsequently reported. None, however, were cited by the counsel for the defendant: nor have I thought it worth while to search for any, although I see by Tuttle v. Tompkins, 2 Wendell, 407, and Sickles v. Fort, 15 Wendell, 559, that the principle has not been steadily adhered to. I am satisfied that it should be, though the defendant ought always to have an election whether he will go by way of recoupment or bring a cross action. I remember two or three cases in which my brother, Chief Justice Nelson, has delivered opinions of this court distinctly in accordance with what I now insist on; and I think I have delivered one or two myself, though I do not now remember the cases.

It is said, that, if the evidence was admissible within Reab v. M Allister, yet notice should have been given. That may be necessary; but the rejection of the evidence was not put on the want of notice ; nor is there any thing before us showing that the proper notice was not given.

The report of the referees is set aside, the costs to abide the event.

Klock v. ROBINSON.

Interest is recoverable in an action of debt on-a judgment for costs of the

defence of an action of assault and battery. So it seems, it is recoverable in an action of debt on judgment, whether the

original demand carried interest or not.

This was an action of debt on judgment, tried at the Herkimer circuit in May, 1838, before the Hon. John WILLARD, one of the circuit judges.

The plaintiff declared on a judgment in his favor against the defendant, rendered in this court in the term of October, 1830, for $38,90, the costs of the defence of an action of assault, battery and false imprisonment, prosecuted against the now plaintiff by the now defendant, and in which action

Klock v. Robinson. ' judgment, as in case of nonsuit, was rendered against the then plaintiff. To which declaration a plea of nul tiel record was interposed. On the trial of the cause, the plaintiff produced an exemplication of the judgment declared upon, and the judge charged the jury that the plaintiff was entitled to recover the amount of such judgment, and interest, by way of damages, from the time of the rendition of the judgment. To which charge the defendant excepted. The jury accordingly found a verdict for $38,90 of debt, and for $21,78 damages. The defendant now moved for a new trial.

L. Ford, for the defendant, said that he had not been able to find any case where interest had been allowed upon a judgment rendered in an action of tort, whether the judgment was entered in favor of the plaintiff or defendant.

Crewze v. Hunter, 2 Vesey, jun. 157, is the leading case upon this question. Interest was claimed from the time of confirmation of the master's report; and the whole reasoning of the court goes to show, that if the question had arisen upon a judgment founded upon tort, interest could not have been allowed. There is no statute which allows interest upon a judgment in a case of tort, and, at common law, interest could not be recovered.

In the opinion of the court delivered in Gelston v. Hoyt, 13 Johns. R. 590, it clearly appears that interest cannot be recovered upon a judgment in a case of tort.

In Sayre v. Auslin, 3 Wendell, 496, which will be much relied upon by the plaintiff, the original judgment was founded on contract, and the language of the court must be understood as applying to judgments founded on contract. If the language of Mr. Justice Sutherland should be applied to judgments founded on torts, it would be at variance with all other adjudged cases. Watson v. Fuller, 6 Johns. R. 283, and all the cases cited in 2 Johns. Dig. 87, are. those of judgments founded on contracts, and the language of the court is to be understood as applying to such judgments alone.

The statute allowing interest to be collected on execu

Klock v. Robinson. tions issued on judgment, applies only to judgments founded on contracts, and no reason can be discovered why interest should be recovered in an action of debt founded on a judgment in a case of tort, and, at the same time, the party not be permitted to collect interest on such a judgment, when an execution is issued. By making this distinction, it is submitted, the legislature intended to say that no interest should be collected upon such a judgment in any manner.

J. C. Underwood, for the plaintiff, admitted that the plain-tiff could not have levied interest by execution upon the judgment. Neither before 1813, could a plantiff levy interest upon any judgment, except in case of debt for a penalty. Nor until 1830, could interest be levied by execution on a judgment upon a judgment. The revised statutes extended this remedy to a judgment founded on any other judgment, or, in other words, to judgments in all actions of debt, covenant and assumpsit. 1 R. Li 506. 2 R. S. 288, 2d ed. But interest, by way of damages, was always recoverable in actions of debt on judgment. This is clearly shown: 1. By the form of the declaration in all the books, which claims interest, or technically speaking, “ damages sustained by means of the detaining of the said debt.” 2 Chitty's Pl. 221. 2. By the fact, that the very definition of a demand bearing interest, and a demand upon which an action of debt may be sustained, is the same. The demand must, in either case, be for a sum certain or liquidated. 3. Debt is the proper form of action upon a judgment, and a judgment is the highest evidence of debt in every possible sense of the term; sor, in the language of Lord Kenyon, “after judgment recovered, transit in rem judicatum. The nature of the demand is altered.” 2 Vesey, jun. 162, 167, 163. i East, 436. 6 Johns. R. 234. 3 Wendell, 496.

By the Court, Cowen, J. The judgment was for the costs awarded to the defendant, (now the plaintiff,) in an action of assault and battery. The statute, R. L. of 1813, 506, ch. 203 $ 50, repeated and enlarged in 2 R. S. 288, $ 9, 2d ed., respects merely an endorsment of the di

Klock v. Robinson. rection to collect interest on an execution. Watson v. Ful: ler, 6 Johns. R. 283, denied that right in all cases, except in an action for a penalty ; but the legislature afterwards allowed it, first under judgments upon contract, and finally under a judgment upon a judgment; doubtless for the rea. son that the latter is, for the purpose of interest, equivalent to a contract. The argument derivable from our legislation would, therefore, seem to be against the now defendant. Why the same right should still be withheld from a judgment for damages arising from a tort, it is difficult to imagine. The judicial doctrine too of allowing and disallowing interest on judgments, whether upon affirmance on error, Gelston v. Hoyt, 13 John. 590, or in other cases, seems in some respects, to rest rather upon arbitrary discretion, practice or precedent, than any principle which conforms to our general notions of justice.

The case at bar has been discussed by counsel, as if the original judgment had been for damages arising from a wrong committed. That is not so. It was for the costs of a wrongful suit, which are given in the nature of a penalty to the party aggrieved. The analogy to a judgment for damages properly so called is not perceivable. Costs included in a judgment on contract are equally in the nature of a penalty ; and it is not denied that the action on such a judgment takes interest for the whole. Indeed, in an action for a statute penalty, (a certain sum,) given to the party grieved, he inay recover damages in addition to the penalty, North v. Wingate, Cro. Car. 559, Sayer on Damages, 71, ed. of 1770, " because,” adds the latter book, “ the money, it being a sum certain, is to be considered as a debt.” And see Thomas v. Edwards, as reported in 3 Anstr. 804, wherein the judgment was pretty much all for costs, and yet interest was allowed.

But take the case in the same light as if the judgment had been for damages arising from the assault and battery. It is said there is no adjudication reported, that interest may be recovered in debt on judgment for a tort. That may be so. But I imagine that a dictum of Chancellor Walworth speaks the sense of all the New York bar, and is according

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