BAMIl-TON ". BALDWIN.
damages caused to plaintiff at the date of the sale, arid then added interest thereto. If a new trial should be granted, the defendant could not hope to change the amount of the verdict unless he could satisfy thejriry that the lands were worth at the date of sale more than $1.25 per acre. This question was a material one at the last trial, and both parties submitted evidence thereon. The jury fixed the value at the figure named, and no showing of error in this regard is made; nor is it claimed that there exists any newly-discovered evidence on this point. There is nothing, therefore, made to appear which would justify the court in assuming that on a new trial any different finding on this question would, be reached. If upon a new trial the findings on this question would be the same, "or substantially so, then the amount of the verdict would not be changed, under the rule of damages laid down in Smith v. RoUes. While, therefore, it is admitted that the rule of damages given the jury was [oneons, it likewise appears that the jury in fact so applied the same as to in the general verdict, the exact result theywQuld have reached bad the correct rule of damages been given them. In fact, therefore; the error caused no injury to d'efendant; and' under such circumstances', and in view of the further fact that the 'court is satisfied thllot the general verdict effectuates justice between the pal"ties, the court is justified, in the exercise of its discretion, in disregarding the admitted error in"the rule of damages given to the jury, and; asa conseqUence, inovertuling the motiop. for new trial.
HAMILTON 'D. BALDWIN. (O'ln'cutt Oowrt, E. D. Missouri, N. D. January 80,1890.)
Co8're-AMOUNT IN CONTROVERSY.
Under Rev. St. U. S. § ll68, which provides that when a plaintift, in a suit originally brought iu the federal court, recovers less than 1500, be shall not recover costs, but may be adjudged topsy costs, where a plaintiff suing on a bill of exchange exceeding 1500 recovers only $400, because of the allowance of a counter-claim for breach of warranty, each party must pay his own costs. '
At Law. On motion to tax costs. Action by George Hamilton against S. H. Baldwin. Harrison Mahan, for plaintiff. Ander80n k Schofield, for defendant.
TBA¥£R, J. The plaintiff in this case, prior to the judiciary act of March 3, 188?" sued the ,defendant as drawer ofa, bill of exchange for ,& sum in excess of $500. The defendant pleaded, by way of counter-claim, that the bill had been given in part payment for a bull sold and delivered by the plaintiff to the defendant with a certain warranty as to soundness and breeding qualities; that the warranty had been broken, and that defendant, in consequence thereof, had sustained damages. The trial of
nn:mAL' BEP.ORTER,:vol·· 41.
in; a, yerdict ,whereby the jtlrors found for ,plaintiff on ,his cause of action. :for ,the .full amount 'of the bill and accrued interest; thatia,: fora sum exceeding $500. Tbey found in favor,pf the defendant,: however, on his counter-claim, and assessed his da:mages for the ,breachof.the warl'antyata sumwhich,whendeducted from plaintiWs damages, reduced the judgment in his favor to.about 8400. ,Under the provisions of sectiQn.968" ,Rev. St. U. S. ,which provides, in substance, that when a plaintiff in! a suit originally,brought in the federal court 1'6less than $500 not recov:er costs, but, at the discretion of the coul:t,may be adjudged to pay costs, it is now insisted,by defendant .that ·pla.intiff be compelled to pay all the costs, or, if that .order is !not gra.nted, that he shall not be allowed to recover his costs. It is manifest ,that the court would not be justi6ed in assessing all the costs plaintiff. Sllch an order with respect to costs should only ,be made in those cases where it .is apparent that a plaintift'has demanded grel1tel';damages than had any expectation of recoveriJllg,;solely with a view of pOnfellringajurisdiction on the court that does not properly l>e1ongc toit. 'l"heclaitn,prefened b,..the plaintiff in the present case was ev,identJymade in good faith, the suit being on a bill of exchange fox: mote than 8500,n() part of which: had been paid. In the absence -ofany·adj'\1dications; on the subject, I should entertain: doubts whether in the Cllsetlt.bar, so as to prevent the plaintiff from recovering his costs. " The.evidentpurpose of the statute was, as above suggesteu, to prevent litigants from claiming a greater recovery than the,}" were entitled to, merely for the purpose of conferring jurisdiction on the "federal courts. When a litigant, as in this case, sues on a bill of exchange or other liquidated demand that exceeds the amount necess!ll'ytogive jurisdiction, and the judgment is in his favor, but is reduced to an amount less than $500 by a connter-chrlm founded 'upon a. demand. for unliquidated, damages, it would seem as though the case was not within the reason of the statute, .· It has been held, for the plaintiff is for less than $500, plain.v. C'amm;on,. 3 488;. C'urrane-e v. McQiteen, 2 109. .to thlsVlew, It IS the Judgment which the plaintiff' is entitled to have entered that determines his right to costs. Adopting that as the pllopet construction:of the statute, it follows that, aLthough! tHe jury assessed plaintHr's damages on .his cause of action for a sum exceeding $500, yet inasmuch as the judgment was reduced to less than $500 by the finding. on. thecounter"claim, the plaintiff is not entitled to costs. The result is that each party must be hf1:;> 'as at comuIOo ]sw,.to pay his own C(lsts. Gibson v ·. Ra.woad Co., J8lFed. Rep·. 553. Judgment, will be 'flntered
MILLER'S'AD1lI'n 11.'NoRFOLlC&W. :R. Co.
Code Va. 1887, § 3225, provides that, in a.il aqtion againstara.ilroad corporation process may be served on a.ny agent of the Qorporation when certain officers, ca.nnot be found in the county where the action In an action begun in tqe fed. eral co'tirt"tlle sheriff'. return sllowedtba.t tlle on defendant's station agent, and did not state that none of the said be found in the judicial district. Held.. insuftlcient, since in the federal courts the statutory limita.tion to the district, inste!'d of the <;ounty.
At Law. On motion to quash the writ because·of.insufficientsemoe. Geo;W.Ward and F. S.Blair, ·. · FulkeriJ(1fl, &: Page, for . '.
J. The return on the writ in' this case shows it to have been
of Tazewell, stat,e of Virginia, in w1;lich said and state the said E. P. Brad'y resides; said service beingmore'than ten day's before the returnday ofthe process." The Code of Virginia (Ed. 1887, § 3225)provides how process against or notice, to a corporation shidP1)e served. of arailroad company, itprovides that sl;'tvice maybe "on cashier, treasurer, general superintendent, or anyone of its II stlitute further provides that "if 'there be not in the county or cor'poration wherein the case is commenced any other persdn on whom there -ca.n ,be, service, as aforesaid," it,may be served "on any agent of the corporl\tion against which the case is." Under the provisions ofthis, statute:, where suit is broug?t in, a state?ourt Ii, company cess must be served on tbe 'presldent; 'cashIer, treasurer, general superintendent,' or one of its dire,ctors. If there be none of these' in the the suitisbrougHi, maybe on any agent ofs\1bhrnilroad company. This court; in the matter ofserving process, applies to the ,whole distriot the statutory provisions concerning counties', in the service of pro'cess in the state 'courts. The w140le of this district niust be regarded, as to territorial limits, $S a connty'is regarded is brought in a state court agaiost'a railroad,cotporation. In· 'a 'suit brought in the United States circuit court'of this distrlctagainst a railroad corporation, process can only be served on an'agenttihllich corporation when the president, cashier,treasu.rer, general superintendent,or)anjiofits dil-ectol'S cannot befdund iuthedililtrict. ' Itappearing to the' court tl)at sOlpe of these principal offi6ers 01 the defendanhallroad company reside in this of the writ on an agent of the be quashed, the case r(,tnanded company is insufficient.. ThewrW to Nles, and new ,.,' " .. , ,