Stackhouse

Mr. Chief Justice Murray and Mr. Justice Terry concurred.

There are two errors, on account of which this case must go back. The first is the refusal of the Court to permit the plaintiffs to strike out their claim for damages. I can imagine no right better established than that of any party to waive a recovery for damages, without regard to the purpose which may influence him. And it often happens in Courts of record even after verdict and judgment, that a party is compelled to enter a remittitur of damages in order to conform his recovery to his actual rights; and it is a privilege which is certainly never denied, whether the question is one of jurisdiction or otherwise.

In this case particularly, the plaintiff was right in moving to withdraw his claim for damages, for in Van Etten & Steele v. Jilson, at the January term, 1856, we held that justices of the peace had no jurisdiction of such claims, in actions of this character, and that case was reversed because the ground of its dismissal was a prayer for damages exceeding the jurisdiction of the justice, the Court holding that it should have been stricken out or disregarded, and ought not to have turned the party out of…