The facts are fully stated in the opinion of the court, delivered by
This action was instituted on an unliquidated demand, for work and labour done. The defendant was arrested and held to bail. He denied all the allegations in the petition, except that he was part owner of the steamboat on which the plaintiffs had worked. And he further set up a demand in reconvention, for damages sustained by the plaintiffs, not having executed the repairs on the boat, within the time stipulated in the contract, and for having made them in so unskilful and defective a manner, that great injury was sustained by himself and the other proprietors of the steamboat. To this demand, .in reconvention, the defendant annexed an affidavit of the truth of the facts therein set
To the petition in reconvention, the plaintiff pleaded the general issue. And, in addition to the defence, claimed two hundred dollars damages, in reconvention, for the illegal and malicious arrest of one of the plaintiffs, on the defendants demand in reconvention. To this last demand no answer was put in.
The jury, however, took all the matters into consideration, and found for the plaintiffs, on their original demand, against the defendant, on his demand in reconvention&emdash; and in favour of the plaintiffs, on their reconventional demand. The damages .assessed by them on the last ground, being one hundred dollars more than the plaintiffs claimed. Their counsel entered a renzittitur for that sum, and the court confirmed the verdict, after overrulling a motion of defendant for a new trial.
He has appealed, and alleges as error:
1. The judgment is for a larger amount than that set fourth in the account, annexed to and making part of the petition-8, N. S. 386.
- ~2. The answer shews that there are several owners of the steamboat Walk-in-the-Water, and the judgment is against the defendant only.
3. The evidence shews that the claims of the defendant as plaintiff, in reconvention, though well supported, were overlooked by the jury.
4. There was no contestate litis on the plaintiff's sup-uplemental claim for damages-8, N. S. 297, 301 and 338.
5. The verdict of the jury, on the claim of the plaintiffs for damages, shews that vindictive damages were awarded.
6. The attorney of the plaintiff had no authority to enter a remittitur for the excess over the demand of the plaintiff. -4, N. 2. 145.
I. The sum claimed in the original petition, is $ 613 37
III. The next ground calls from us an opinion on the merits. We have examined the evidence. It is contradictory, but we think preponderates in favour of the plaintiffs, . . . It is tar from presenting a case which would authorize us to interfere with the verdict of the jury. ,
jy_ Tpe next error alleged is the want of a contesiatio ° litis, on the plaintiff’s supplemental claim for damages.
We have decided in the case of Suarez vs. Duralde— 1, Miller 266 — that it is not necessary to file an .answer to a petition in reconvention. The law implies a general denial to such demands. We, therefore, think there was a contes-iatio litis, and the cause cannot be remanded on that ground. The-difficulty we have had with this part of the case, does not arise from want of an answer to the claim in reconvention, but from permitting such a claim to be filed. If it had been objected to, it must have been rejected. The principle reconvention cannot be permitted on reconvention, was v firmly settled in our ancient laws, and the Code of Practice neither contemplates nor provides for such a mode of pro-
iii • But the case does not present the naked question as to the legality of permitting such a claim ; it embraces another very important consideration, whether the defendant can now take advantage of the irregularity. He did not object to the petition being filed. He made no opposition to the matters embraced by it being submitted to the jury; or, at least, if he did, the record contains no proof of it. We think, therefore, that after acquiescing in an examination of the demand, in the form in which it was presented, and taking the chance of having it rejected by the jury, he cannot have the case remanded, because they found against him.
Y. The jury are charged with rendering vindictive damages. The proof offered of it is, that they found $ 300 for the malicious arrest, when only $ 200 were demanded. But we see no evidence of such a feeling in this circumstance. . They, no doubt, thought the plaintiffs entitled to the sum they found due to them, and supposed they had demanded it. It cannot be presumed, that twelve men called on their oaths, to decide between two strangers, should be seized with a spirit of revenge against one of the parties, and in furtherance of it, give- vindictive damages. There are many other ways of accounting for the error, and this is the last which should be resorted to. Excess of this description, is not an uncommon occurrence; but it is rare to consider the whole finding as bad, because such a
The last ground, is the want of authority in the attorney , ' , . . . . . , ,, , , to enter up the remittitur. As judgment could not have obtained for the excess, and as that excess stood in the way 0f judgment, for what was really due, we think the J ■ ° . . .. attorney acquired a right for his client, instead of surrender- . • ♦ Eng one. It wás within the scope of his authority to do all matters in court necessary to obtaining the sum which his client had demanded in the petition.
It is, therefore, ordered, .adjudged and decreed, that the judgment of the District Court be affirmed with costs.