Connelly v. McNeil, 47 N.C. 51, 2 Jones 51 (1854)

Dec. 1854 · Supreme Court of North Carolina

47 N.C. 51, 2 Jones 51

SUSAN CONNELLY, ADM’X. vs. JOHN McNEIL, EX’R. et al.

It is erroneous for a jury to give interest on damages found by them in an. action of trespass quare clausum fregit: but this Court has the power to allow a remittitur to be entered for interest so given.

In the above case the remittitur was allowed on the payment of costs, and then the judgment below was affirmed.

AoxioN of TRESPASS qucure clausum fregit, tried before bis Honor Judge Manly, at the Fall Term, 1854, of Cumberland Superior Court.

The exceptions taken to the instructions which his Honor gave the jury were abandoned in this Court, and the only question submitted is upon a motion' here by the defendants’ counsel to arrest the judgment, because the jury in their verdict, had allowed interest upon the damages which they found for the plaintiff. The plaintiff meets that motion by another to be allowed to enter a remittitur for the interest.

J. G. Shepherd, for the plaintiff.

D. Reid, for the defendant.

Nash, C. J.

The action is ih trespass quare clausum fregit. The jury returned a verdict against the defendant for ninety dollars, with interest on that sum from the date of the writ, for which judgment was rendered. A motion is made in arrest of judgment by the defendants, and the plaintiff moves for permission to amend the record by entering a remittitur for the interest. The judgment is unquestionably erroneous, and would be arrested, but for the counter motion by the plaintiff. That this Court can allow the judgment to be amended by permitting the remittitwr, is fully established by the case of Williamson v. Cannady, 3 Ire. Rep. 349, in which the reasons for such a course of procedure are set forth at large, and we deem it unnecessary to repeat them.

The plaintiff has leave to enter a remittitvrr upon the payment of the costs of this Court, The judgment is affirmed.

Per Curiam. * Judgment affirmed.