George N. Stevens v. William P. Briggs, 14 Vt. 44

The opinion of the court was delivered by Williams, Ch. J. It was decided in the case of Atkinson v. Thornton, 1 Camp. 559, note, c that if after action ‘ brought, the money sought to be recovered is paid without * a rule of court, the plaintiff must have a verdict.’ In the case of Horsburgh v. Orme, same page, where the defendant had paid the debt, but not the cost, the plaintiff had a verdict with nominal damages. A similar decision was made in the case of Goddard & another v. Benjamin, 3 Camp. 331, where the payment was made the same day the action was commenced and a receipt given.

As it did not appear at what hour of the day the payment was made, whether before or after the commencement of the action, the plaintiff was allowed to take a verdict with nominal damages. From these cases, as well as from the case of Toms v. Powell, 7 East, 536 ; Holland v. Jourdine, 1 Holt, 6 ; Francis v. Crywell, 5 Barn. & Ald. 886; Nelson v. Wilson, 6 Bing. 568 ; it appears to be settled, that a defendant cannot avail himself in defence of payment after the commencement of the suit, unless • he also pays the cost as well as the debt.

Unless the cost is paid, or the plaintiff has voluntarily relinquished his claim to the debt and cost, as he might, by a release or accord, he may recover nominal damages, so as to carry the cost. The rule can be no otherwise, where he has separate remedies for the same debt or demand, and is pursuing them at the same time. The payment of one can be no discharge of the other, except on the payment of the cost in all the actions. The cases referred to in Chitty on Bills, 570, settle this point.

In the case before us, when the judgment was rendered in the suit on the jail bond, the defendant could have paid the money into court, or tendered the amount to the plaintiff, either of which would have discharged the defendants from any further proceedings on that judgment; but, unless it was a payment of this very recognizance and the cost, it could not preclude the plaintiff from ■, proceeding for nominal damages and cost. The recognizance was forfeited and the plaintiff was entitled to maintain 'an action thereon.

Although this action would have been defeated if the payment of the judgment had been made before suit brought, as a discharge or satisfaction of the debt, or matter in demand, would bar any future suit on all’or any of the remedies ; yet, after suit brought, it could only be defeated or discharged by a payment of the'cfebt and the cost. The plaintiff was therefore entitled to a judgment for his damages and cost. The judgment of the county court was for the plaintiff to recover cost only, without any judgment for damages. This was erroneous.

A judgment can never be rendered for a plaintiff to recover cost, except there be a recovery for damages. Costs, are consequent upon the recovery of debt or damages. On this ground, no costs were allowed at common law, on a writ of scire facias, and was only allowed in pursuance of the state 8 and 9 William 3, ch. II. In this state the right of a plaintiff to recover cost on scire facias stands upon the same ground as a recovery in any other action and is expressly recognized by statute, chap. 28, s. 28.

As no judgment was rendered by the county court for damages, their judgment must be reversed and judgment rendered for the plaintiff to recover one cent damages and his cost.