Solomon Colony vs. Jacob Maeck, 8 Vt. 114

The opinion of the court was delivered by Williams, Ch. J- -This is an action of debt on a recognizance, entered into by the defendant in the county court, to prosecute a suit there pending, in favor of one T hompson against Colony the present plaintiff, and to pay all costs in case of failure.

The suit 0|^ Thompson against Colony was originally commenced before a justice of the peace, a judgment was rendered by the justice in favor of Thompson, Colony appealed to the county court, and inasmuch as the matter in demand was over one hundred dollars, the county court dismissed the suit and taxed costs in favor of Colony against Thompson which have not been paid.

A recovery in this suit is resisted, on the ground that the suit of Thompson against Colony not being within the jurisdiction of a justice, nor within the appelate jurisdiction of the county court, the county court had no authority to take the recognizance, but the only remedy of the present plaintiff is by his execution against Thompson. Of the authority of the court to take such recognizance, we have no doubt. By the general statute, every plaintiff, on praying out a writ, is required to give security to the defendant, by way of recognizance, that he will prosecute the suit to effect.

The court, before whom the suit is depending, where either the surety or the sum of the recognizance is insufficient to respond the costs, may .order bail to be put in for that purpose. It is incident to the power of the court to take a recognizance. Wherever the court can tax costs, .they may, by their general power under the statute, take a recognizance to secure the payment of those costs. For many purposes the court had jurisdiction of the cause between the parties, although the recant want of jurisdiction may have been a defence to the suit, or preclude a final judgment on the merits of the action.

The action was regularly before them for the purpose of adjudicating on any plea denying the jurisdiction. While the suit was pending, and before it was decided, the defendant might have been surrendered and ordered into custody in discharge of his bail. The court had jurisdiction for the purpose of taxing and rendering judgment for costs, and their judgment was subject to a writ of error, or a removal to the supreme court by exceptions, which is similar to a writ of error. It is equally clear to us that they had jurisdiction for the purpose of taking a recognizance to secure costs.

We do not consider that the power of the court to take a recognizance in cases similar to this was given by the statute of 1830. It existed before, and no writ could legally issue without a recognizance. Before that statute, whenever a cause was dismissed for wgnt of jurisdiction in the court, costs usually were not allowed or taxed. Of course the recognizance became of no .consequence. But when the legislature direcjted the court to tax costs for the de~ fendant upon dismissing a cause for want of jurisdiction, the same necessity existed for requiring a recognizance to respond the costs as in any other suit.

In the case between Thompson and Colony the court had jurisdiction of the parties an.d of the action so as-to render a judgment thereon for the cost; the justice who issued the writ was required to take a recognizance to respond the costs ; and the court, while the action was pending before them, had, by the general statute and as incident to their powers, authority to take the recognizance on which this suit was brought, and the same must be effectual for the.purpose for which it was taken. Having this view of the case the judgment of the county court, which was in favor of theplainr tiff, must be affirmed.