PETER HENDRIXEN vs. JOHN HUEY, 2 Harr. 301

Per Curiam. J. M. Clavtok, Chief Justice. Two motions have been argued. 1st. For a nonsuit on leave given, &c. 2d. In arrest of judgment, on the ground of immaterial issue. The decision of the latter super-cedes the necessity of the other. The narr. states a receipt of satisfaction of the judgment, interest, costs and charges of the action. We are not able to perceive any ambiguity in this expression, or we would intend after verdict, that it meant the plaintiff’s costs.

The costs and charges of the action are all the costs of the action, both of plaintiff and defendant; not the costs expended, to wit, plaintiff’s costs. The finding of the jury does not show beyond doubt, that they did not give damages for not satisfying the record as to the defendant’s costs; which does not fall within the act, the defendant not being bound by that law, though he may be in conscience, to satisfy the record. This is not a case defectively stated, or we should take it to be cured by the verdict; but it is the statement of a case not embraced in the law.

It does not appear beyond doubt but that satisfaction was entered for the judgment and plaintiff’s costs, and that damages have been given for not satisfying the record as to the defendant’s costs. Wrn. II. Rogers, for plaintiff. J. A. Bayard, for defendant. The judgment must be arrested, but the question is, what shall be done with the case? Is it a case for repleader ; or is the party out of court? Chitty lays it down, that a repleader shall not be allowed in favor of the party who makes the first default in pleading *, but in a note the author suggests a quere, which we find to be well founded.

The authorities for the position are 1 Chitty Plead. 649; 1 Lord Ray’d. 170; and Doug’l. 396, 747. Then we are to inquire what effect our own constitution has on this question of the power to grant a repleader; and it seems to be the policy of our law to allow amendments at any time before judgment, in order to effect justice. Const. Art. 6, Sec. 16.

We have heard this ease on the evidence, and the judgment is arrested, not because in point of fact the jury gave damages for the failure to satisfy the record as to the defendant’s costs; but because the record shows that on the issue made up, (being immaterial as to this,) they might so have given damages. The verdict cannot stand on such an issue, and the judgment must be arrested ; but the principles of justice require that the party shall not be turned out of court on this ground. It is true that this is a penal action, but it is a highly remedial one; affording a remedy for a civil wrong.

On the whole, we have determined in this case to arrest the judgment, and award a repleader; on the payment of costs by plaintiff, up to this time.