does. Where a case is tried by a jury, and they return a verdict for the plaintiff, but without any finding of damages, the court may amend it in this respect by adding nominal damages, as it is a legal consequence of the finding, and enter judgment accordingly; and this correction is necessary to give the plaintiff a judgment for costs.2 § 466. Judgment must follow verdict. The ver- [828] dict is good if it contains the data for ascertaining the amount with certainty by calculation. The judgment is warranted by the verdict when rendered for the amount so ascertained." Thus, where the suit was on a note for $100, and the jury returned a verdict "for the plaintiff for the amount of the note, $100," and a judgment was rendered for $105.66, principal debt and interest, the court, holding that the interest followed the debt as an incident, affirmed the judgment." When the verdict is excessive, and the excess is remitted, the judgment is properly rendered for the residue. If a verdict exceed the penalty of a bond the court may enter judgment for the proper fault is entered in the same manner, but the plaintiff must apply to the court for the relief demanded in his complaint; and it is also provided that if the taking of an account, or the proof of any fact be necessary to enable the court to give judgment, the court may take the account, or hear the proof, or may in its discretion order a reference or a jury trial for that purpose. It was held, if the suit be for unliquidated damages, they must be shown by proof in one of these modes. By the code of Kentucky, allegations of value or amount of damages cannot be taken as true by failure to answer. Daniel v. Judy, 14 B. Mon. 393; Clarke v. Seaton, 18 id. 226. 1 Ante, § 416. 2 Von Schoening v. Buchanan, 14 Abb. Pr. 185; Pickens v. Hayden, 2 Stew. 10; Stevens v. Briggs, 14 Vt. 44; Loomis v. Tyler, 4 Day, 141; Thomas v. Commonwealth, 3 J. J. Marsh. 121. The omission of the word "dollars" in a verdict for plaintiff in assumpsit does not affect the validity of the judgment rendered thereon though no amendment was made. Hopkins v. Orr, 124 U. S. 510. 3 Colonization Society v. Reed, 25 Tex. Sup. 343; Diedrich v. Northwestern R. Co., 47 Wis. 662; Mitchell v. Giessendorff, 44 Ind. 358; Reid v. Dunklin, 5 Ala. 205; Martin v. Commonwealth, 6 J. J. Marsh. 549. 4 See ante, § 464; Dawson v. Shirk, 102 Ind. 184. Fisk v. Holden, 17 Tex. 408. See West v. Milwaukee, etc. Ry. Co., 56 Wis. 318. Under a statute which provides that "when, by the verdict, either party is entitled to recover money of the adverse party, the jury, in their verdict, must assess the amount of the recovery,” the court has no power to add interest to the amount named in the verdict. Hallum v. Dickinson, 47 Ark. 120. 6 Linder v. Monroe, 33 Ill. 388. amount. Where the jury have assessed the damages for a tort at an entire sum no court of law, upon a motion for a new trial because the amount awarded is excessive and for the insufficiency of the evidence to support the verdict, is authorized, according to its own estimate of the amount of damages the plaintiff ought to have recovered, to enter an absolute judgment for any other sum than that assessed by the jury. If this is done either party may complain of the judgment.2 If the statute prescribes the rule of damages and upon the admitted facts the court might properly have directed a verdict for a certain sum, it may increase the amount included therein, the finding being in disregard of the instructions.' 467. Judgment must be certain. And must state the amount adjudged in the lawful money of the forum. The entry ought to contain in itself such precision and certainty as to enable the clerk to issue execution by inspection of it without reference to other entries. A verdict in assumpsit was found in favor of the plaintiff for $90 with interest from a day stated; a judgment was entered on it for $90 with interest from the same day. This judgment was reversed and then entered up for the aggregate amount, the verdict being good. The judgment was uncertain. "The date," say the court, "from which interest is to be calculated is given by the verdict, but the time to which it was to run cannot be ascertained without reference to the whole record; it would run till the rendition of the judgment, from which time the principal and interest, as a gross amount of damages, would carry interest. The rendition of the judgment is the act of the court, and a defect in the judgment cannot be amended by the clerk in issuing execution."5 1 Cohea v. State, 34 Miss. 179. 2 Kennon v. Gilmer, 131 U. S. 22, 29; Brown v. McLeish, 71 Iowa, 381. 3 Schweitzer v. Connor, 57 Wis. 177. It was held in Rafferty v. Missouri Ry. Co., 15 Mo. App. 559, that a judgment cannot be rendered upon a verdict which awards a less sum as damages than the statute fixes. 4 Boyken v. State, 3 Yerg. 426; Peet v. Whitmore, 14 La. Ann. 408; Harmon v. Childress, 3 Yerg. 327; Spiva v. Williams, 20 Texas, 442; Roberts v. Landram, id. 471; Early v. Moore, 4 Munf. 262; Berry v. Anderson, 2 How. (Miss.) 649; Claughton v. Black, 24 Miss. 185; Downing v. Dean, 3 J. J. Marsh. 378; Mitchell v. Gibson, 14 Ark. 224; Bartlett v. Blanton, 4 J. J. Marsh. 426. 5 Tankersley v. Silburn, Minor (Ala.), 185. A judgment cannot be rendered to draw interest prior to its rendition. In rendering judgments for money, and all judgments [829] for debts or damages must be so rendered, and in lawful currency,' the denominations of the money must be specified. A judgment for an amount expressed in barren figures, as for four hundred and sixty-one not express a sum of money. Simmons v. Garrett, McCahon (Kan.), 82. The judgment entry in Barnett v. Caruth, 22 Texas, 173, recited the trial and set out the verdict: "We, the jury, find for the plaintiffs one thousand two hundred and nineteen 55-100 dollars principal; and the further sum of one hundred and seventy-seven 89-100 dollars interest; making in the aggregate $1,347.44." After the recitals the entry contained judgment: "It is ordered, adjudged and decreed by the court that the plaintiffs do recover of the defendant for their debt, damages and costs," etc. This judgment was held erroneous for being uncertain as to the amount of recovery. See Martin v. Commonwealth, 6 J. J. Marsh. 549; Hann v. Gosling, 9 N. J. L. 248; Blane v. Sansum, 2 Call, 495; Codwise v. Taylor, 4 Sneed, 346; Brown v. Horless, 22 Texas, 645. A more liberal rule was laid down in Pennsylvania, in Lewis v. Smith, 2 S. & R. 142. The judgment in that case is thus referred to and maintained by Tilghman, C. J.: "The judgment was entered in the way very usual in this court in actions on the case; that is to say, the prothonotary entered in the docket judgment, without mentioning for what sum. Inconveniences frequently arise from our loose practice; but the practice of every court is justly said to be the law of the court; and we should produce much greater evils than those we wished to prevent should we attempt now to destroy past judgments because damages," is a nullity; it does Expressing the amount in fig they were not entered in a manner so accurate as they might have been. I take it, that where judgments are confessed, if the plaintiff's demand is of the nature of a debt, which may be ascertained by calculation, whether it arise on a note or other writing, or on an account, it is sufficient to enter judgment generally. The judgment is supposed to be for the amount laid in the declaration, and the execution issues accordingly. But the plaintiff indorses on the execution the amount of the actual debt, and if the defendant complains that injustice has been done the court are always ready to give immediate and liberal relief on motion." 1 Duerson v. Bellows, 1 Blackf. 217; Maynard v. Newman, 1 Nev. 271; Sibert v. Kelly, 6 T. B. Mon. 669; Whetstone v. Colley, 36 Ill. 328; Stockton v. Scobie, 1 J. J. Marsh. 6; Carson v. Pearl, 4 id. 92; Griffith v. Miller, 6 id. 329; Randolph v. Metcalf, 6 Cold. 400; Erlanger v. Avegno, 24 La. Ann. 77; Buchegger v. Schultz, 13 Mich. 420; Henderson v. McPike, 35 Mo. 255; Bank of P. E. I. v. Trumbull, 53 Barb. 459; Mitchell v. Henderson, 63 N. C. 643; Chamberlin v. Vance, 51 Cal. 75; Munter v. Rogers, 50 Ala. 283. [830] ures is not, probably, an infraction of the statutes requiring judicial proceedings to be recorded in the English language,' but it is deemed too unsafe, and therefore has been held not to be tolerated. In New Jersey, such proceedings being required to be recorded "in words at length," stating the amount of a judgment in figures has been held to be good cause for reversal.3 SECTION 6. RESTITUTION AFTER REVERSAL OF JUDGMENT. § 468. How made. When it happens that a judgment is collected or paid pending a writ of error, appeal, or certiorari, the defendant is entitled, on its reversal, to restitution of what he has lost by the erroneous judgment. If money has been collected or received upon a judgment valid at the time and binding between the parties, and that judgment is subsequently reversed, it may be recovered, although payment may not have been coerced by actual duress. It may be recovered by suit. Other common-law remedies are cumulative. A court of equity is possessed of power to order the restitution of money collected under its decree after a reversal thereof, if the decree of reversal extends to a dismissal of the bill for want of equity. Such restitution may be ordered by rule. The court which rendered the erroneous judgment may cause restitution to be made, and the appellate court after reversing it, if informed by the record or otherwise that the judgment has been collected, may require restitution to be made by process from the court below, and enforce compliance by mandamus. The mode of proceeding to procure such restitution must be regulated according to circumstances. Sometimes it is done by a writ of restitution without a scire facias, when the record shows that the money has been paid, 1 Fullerton v. Kelliher, 48 Mo. 542; Tankersley v. Silburn, Minor (Ala.), 185. 2 Linder v. Monroe, 33 Ill. 388. 3 Cole v. Petty, 2 N. J. L. 60; Walter v. Vanderhoof, id. 73. 4 Lott v. Swezey, 29 Barb. 87. Id; Sturgis v. Allis, 10 Wend. 354; Clark v. Pinney, 6 Cow. 297; 7 Morgan v. Hart, 9 B. Mon. 79. 8 Ex parte Morris, 9 Wall. 605; Hall v. Emmons, 11 Abb. (N. S.) 435. and there is a certainty as to what has been lost. In other cases a scire facias may be necessary to ascertain what is to be restored.1 § 469. Third parties not liable. What is done under [831] the execution pursuant to its precept is valid; and, so far as strangers and third persons are concerned, final. Where the property taken under the erroneous judgment, in the absence of a supersedeas bond on an appeal, has, by voluntary sale, or by seizure and sale under process, passed to innocent purchasers pending the appeal; or where money collected under such judgment is received by one in a fiduciary character, as by an administrator, and he has pursuant to an order of court paid it over to another, the summary remedy provided by the statute for ordering restitution cannot properly be administered; and the party must pursue a different remedy by which all necessary parties may be brought before the court. The court 1 Id.; 2 Salk. 588; Tidd's Pr. 1033; Hunt v. Westervelt, 4 E. D. Smith, 225. In Safford v. Stevens, 2 Wend. 158, a judgment of nonsuit, rendered in the common pleas, was reversed with costs, and a new trial granted. The record of the supreme court contained a suggestion that the plaintiff had obtained satisfaction of the judgment for costs in the common pleas, whereby the defendant had lost $73.83, as was suggested, shown to, and manifestly appeared" to the court; whereupon the court awarded restitution. In the court of errors, referring to this practice, the chancellor said: "It was undoubtedly the former practice to award restitution on the reversal of the judgment, only where it appeared by the return of the execution that the damages or costs erroneously awarded by the court below had been actually levied and paid over. And if the fact did not appear upon the record, the party was put to his scire faci inquiry to ascertain the fact, upon the return is of which restitution was awarded. But I believe the modern practice has been to apply to the court on affidavit for leave to suggest the fact on the record, and upon which the judgment of restitution awarded. I see no objection to this course, as the court would undoubtedly permit the defendant to traverse the suggestion, if there was any doubt of its truth." See Sheridan v. Mann, 5 How. Pr. 201; Arrowsmith v. Van Arsdale, 21 N. J. L. 471. In New Jersey the amount to be restored is settled by an assessment signed by one of the judges. Id.; Harm v. McCormick, 4 N. J. L. 109; Randolph v. Bayles, 2 id. 52; McChesney v. Rogers, 8 id. 272. The practice is now very generally regulated by statute. 2 Langley v. Warner, 3 N. Y. 327; South Fork Canal Co. v. Gordon, 2 Abb. (U. S.) 479; Bank of U. S. v. Bank of Washington, 6 Pet. 8. See Reynolds v. Hosmer, 45 Cal. 616. 3 Polk County v. Syphen, 17 Iowa, 358. |