Baltimore City Pass. Ry. Co. v. Sewell

• Decision Date: 20 February 1873
• Citation: 37 Md. 443
• Parties: THE BALTIMORE CITY PASSENGER RAILWAY COMPANY v. THOMAS SEWELL, JR.
• Court: Maryland Court of Appeals

37 Md. 443

THE BALTIMORE CITY PASSENGER RAILWAY COMPANY v. THOMAS SEWELL, JR.

Court of Appeals of Maryland

February 20, 1873

Appeal from the Superior Court of Baltimore City.

The facts are stated in the opinion of the court.

The cause was argued before BARTOL, C.J., STEWART, BOWIE, BRENT and ROBINSON, JJ.

Arthur W. Machen and I. Nevitt Steele, for the appellant.

The provision of the Code is express, that all judgments shall be so entered as to carry interest from the time they were rendered. Code, Art. 29, sec. 15.

A like provision is made in regard to judgments of Justices of the Peace, which are directed to be so entered as to carry interest thereon from the date thereof. Art. 51, sec. 27.

The Act of 1861, ch. 70, in extending the lien of judgments to leaseholds, enacts that every judgment (thereafter to be rendered) shall constitute a lien to the amount and from the date thereof. Davidson v. Meyers, 24 Md. 538.

It would seem clear, therefore, that, inasmuch as the judge is incompetent to assess damages, he can only enter up judgment for the sum found by the jury, and that such judgment must carry interest from its date. This conclusion, resulting from the plain words of the statute, becomes more certain, when it is considered that at common law a judgment did not bear interest at all. Perkins v. Fourniquet, 14 How. 331; Boehme v. Aisquith, 4 H. & J. 207.

All interest accruing before judgment is damages; and the verdict is the exclusive and final assessment of the damages. The court has no power to award interest even upon an interlocutory judgment under the Act of 1858, ch. 323. Mailhouse v. Inloes, 18 Md. 328; Pawling v Sartain, 4 J. J. Marshall, 238; Byinton v Lemmons, Hemstead C. C. 12.

If interest in the opinion of the jury is to run down to the time of the entry of judgment, the jury it must be presumed assessed interest down to that time; as, in an inquiry of damages where land is to be taken for a public use, all the damages are presumed to have been taken into consideration however improbable it may be in the particular case that certain special damages were considered. C. & O. Canal Co. v. Grove, 11 G. & J. 398.

Where the court, acting within the scope of its constitutional and legal jurisdiction, discharges the duty of assessing the damages, the ascertainment of damages and the judgment necessarily go together, and thus any omission on the part of the court fully to calculate the interest, is such an error as that of a jury impannelled for the same duty, and making the same omission would be. Such was the case in the contemplation of the court in Anders v. Devries, 26 Md. 227. The question in the present case could not have arisen under the circumstances of that case; where, however, the construction we are now contending for was recognized by the court.

The learned judge of the court below, according to the opinion filed in the case, seems to have regarded himself as controlled by a supposed course of precedents. These, however, will be seen to lose their force, if attention be directed to the statutory enactments by which the practice has been from time to time affected. Originally, in Maryland, no judgment upon verdict carried interest. The old dockets of Baltimore County Court show this, and it also distinctly appears from 2 Harris' Entries, published in 1801. See the form of a judgment for the plaintiff, in assumpsit, on page 89, and in trespass, on page 149.

A practice obtained at the same time of entering judgments upon confession for the amount of the damages claimed in the declaration, with a memorandum of an agreement by the plaintiff that the said damages should be released upon the payment of a specified sum with interest thereon from a named day. This had its beginning perhaps in the form of a warrant of attorney, cognovit, judgment bond, or other security, in use at the time, and under which such confessions were at first ordinarily made. It is observable, however, that even in judgments by confession, or upon agreement, it was not deemed regular to enter judgment for interest directly, but judgment was entered for the penal sum, with the qualification of the agreement that it should be released on receipt of the lesser amount. A judgment rendered by non sum informatus before 1800, for the debt due on a single bill, with accruing interest, was held to be erroneous. Preston v. West, 4 H. & McH. 70.

This form of judgment was first authorized in suits proceeding in invitum, by the Act of 1802, ch. 101; this enactment is retained in the Code, Art. 29, sec. 21.

By the Act of 1809, ch. 153, sec. 4, (November Session), the courts were authorized in all cases, "to enter such judgment upon the verdict as will carry an interest on the same until the payment of the damages assessed by the jury giving such verdict." An ambiguity arising from the position of the words "on the same" is remarked upon in the opinion of the learned judge below. Perhaps, however, it is more apparent than real. In the contemplation of the statute, the verdict is one thing, and the damages assessed another; the verdict is the finding upon the issue, and may be either for plaintiff or defendant; if it be for the plaintiff, the jury also proceed to assess the damages. The judgment, strictly, is rendered on the verdict, that is to say as a consequence of the finding on the issue joined, and not on the assessment of damages; and therefore the draughtsman of the law did not imagine that a verdict, properly so-called, could be supposed capable of carrying any interest, nor doubted that "same" would be understood as necessarily referring to judgment. Accordingly, he does not say "until the payment of the verdict," or of "the amount of the verdict," but of "the damages assessed by the jury giving the verdict." The succeeding 5th section of the same Act puts judgments of justices of the peace on the same footing, and makes them carry interest from their date. The Act of 1802, being in pari materia may also be looked to for light as to the meaning of the expressions used in this Act. And the Act of 1811, ch. 161, sec. 5 makes it still more clear. Taking all the statutes together, there is no reasonable ground for doubting that the interest authorized in all was to run from the date of the judgment.

The Act of 1856, ch. 126, modified the operation of the Act of 1809. The Code has repealed the Acts of 1809 and 1811 altogether, and substituted an uniform and explicit rule for all judgments. What parties may still do by consent, or may preclude themselves from objecting to by acquiescence, is not necessary to be considered here. Anders v. Devries, 26 Md. 222. It is enough, that, without consent, only the interest allowed by the statute can be given. Even if the court were otherwise authorized to allow interest in the nature of damages, it would be totally contrary to principle, and all authority or precedent, to exercise such power in an action of tort, or where interest does not necessarily result from the cause of action under a rule of law. Jennings v. The Perseverance, 3 Dall. 338; Youqua v. Nixon, Pet. C. C. 224; Butler v. Stoveld, 8 Moore, 412; Henning v. Van Tyne, 19 Wend. 101; Messin v. Massareene, 4 Term, 493; Creuze v. Hunter, 2 Ves. Jr. 157, 168.

The court has no power to assess damages. Rolle Ab. 573; Comyn's Dig. tit. Damages, (E. 7). It is a principle that damages are not recoverable for the delay of the court. Rolle Ab. 573. Judgment cannot be entered for interest accruing after the verdict. Pawling v. Sartain, 4 J. J. Marsh. 268.

Interest is never recoverable upon costs, no matter how considerable the amount may be; and this is because no statute has been passed authorizing it. Hammond v. Hammond, 2 Bland, 376.

It has not been attempted in this case to cause a judgment to be entered as of the date of the verdict, nunc pro tunc; and it is plain that any such endeavor to evade the force of the rules and principles of law which have been adverted to, must have been unsuccessful. Anderson v. Tuck, 33 Md. 232; Jarrold v. Rowe, 8 Price, 582.

Daniel M. Thomas, for the appellee.

The propriety of allowing interest to the time of signing the judgment on debts carrying interest, has been expressly maintained in England, and does not seem to have been questioned in this State. Frith v. Leroux, 2 Term, 58; Robinson v. Bland, 2 Burr. 1,077; Bodily v. Bellamy, 2 Burr. 1,094.

In Maryland this practice seems to have prevailed from a very early period, and before any legislation on the subject. Hook v. Boteler, 3 H. & McH. 348; Contee v. Findley, 1 H. & J. 331; Johnson v. Goldsborough, 1 H. & J. 499; Gwinn v. Whitaker, 1 H. & J. 754; Hammond v. Hammond, 2 Bland 368.

The English cases show a manifest disposition on the part even of the Common Law Courts to make all judgments on claims bearing interest include interest to the day on which the judgment was signed, and whenever that day could be ascertained in advance, the jury were directed to include such interest in their verdict; and where this was not done by the jury, the court (as in the case of Robinson v. Bland,) would itself "carry down" such interest.

The cases cited from our own courts show a disposition here to allow interest even more liberally than was done in England. This court when this case was previously before it, declared (35 Md. 257,) that the plaintiff in this action was "entitled to complete satisfaction equivalent to specific relief in equity," and that in equity he would have recovered the dividends accrued on the stock with interest thereon, and that the plaintiff was entitled here in addition to the accrued dividends and interest thereon, to the value of the stock at the time of the demand, with interest to the day of trial "in...