CHITTENDEN, plaintiff prayed out a writ of execution on said last mentioned

January,

1842.

Stevens

บ.

Briggs.

judgment in due form of law, for the full amount thereof, made returnable within sixty days from its date, and then and there delivered said last mentioned writ to Amos W. Butler, then and for more than sixty days thereafter, a deputy sheriff under George A. Allen, sheriff of said county of Chittenden, to levy and collect; that afterwards, while said execution was in life and in the hands of said Butler, deputy sheriff, as aforesaid, to wit, on the 28th day of May, 1839, at Burlington aforesaid, the said Talcott and the defendant paid the amount of said execution to said Butler, deputy sheriff as aforesaid, and to the plaintiff, together with said Butler's fees, to wit, ten dollars, for levying and collecting said execution, which the plaintiff and said Butler then and there accepted in full satisfaction and discharge of said last mentioned execution and judgment so recovered as aforesaid against said Talcott and the defendant, concluding with a verification.

The third plea was, in substance, like the second, with this exception; in the third plea the defendant alleged the payment of the judgment and execution against Talcott and the defendant, to have been made to the plaintiff, and that the plaintiff accepted the amount so paid in full.

Replication to the first plea: that true it is, the said Talcott after the commencement of this suit, and after the same had long been pending in this court, and a large amount of costs had accrued therein, did, before the filing of the defendant's said plea, to wit, on the first day of August, 1839, at Burlington aforesaid, pay to the said Stevens, the said sum of money in said judgment, in said writ of scire facias mentioned in full satisfaction and discharge of said judgment in said writ of scire facias mentioned; yet at the time of the payment of the aforesaid judgment in said writ of scire faicas mentioned, to wit, on the first day of August, 1839, the said writ of scire facias was then pending in this court, and a large amount of legal and taxable costs had then accrued thereon to the said Stevens, which this defendant was then liable to pay, to wit, the sum of 25 dollars, which was well known to this defendant and said Talcott, and neither this defendant nor the said Talcott, nor any other persons have paid or offered to pay said legal and taxable costs or any part thereof, and this he is ready to verify;

wherefore he prays judgment and execution for his costs CHITTENDEN, January, aforesaid.

The plaintiff, in his replication to the second and third pleas, admitted the recovery of the judgment in the suit upon the jail bond against Talcott and the defendant, and the payment of the money in satisfaction of that judgment and the execution issued thereon, and averred that this suit was 'commenced long previous to the payment and satisfaction ' of the said execution by the said Talcott and Briggs, as in 'the defendant's second and third pleas set forth, and that at 'the time of said payment, to wit, on the 28th day of May, 1839, this suit was pending in this court against the said Briggs, and a large amount of legal and taxable costs had 'then accrued therein, in the prosecution of the same, in favor 'of the plaintiff against the said Briggs, to wit, the sum of 'twenty-five dollars, which the said Briggs was then liable to pay, which was, at the time of the payment of the ex'ecution aforesaid, well known to the said Briggs and Tal'cott, yet, neither the said Talcott, nor Briggs, nor any 'other person, has paid or offered to pay said costs, or any 'portion thereof,' concluding with a verification.

To these replications the defendant demurred and the plaintiff joined in demurrer.

The county court decided that the replications were sufficient and rendered judgment for the plaintiff to recover his costs. The defendant excepted to the decision.

Hyde & Peck for defendant.

Scire facias is not an original action, but a proceeding ancillary to and based upon the original judgment and must be brought in the same court. No damages are claimed or recovered; and if the plaintiff succeed, it is not a recovery of judgment, but an award of execution on the original judgment. The pleadings in this case show a payment of the full amount and interest by the defendant and an acceptance by the plaintiff in satisfaction of the judgment, which is an extinction of the judgment. The judgment being extinguished no execution can be awarded thereon. No execution could be awarded against the principal, and, consequently, none against the bail. In this proceeding no damages, not even nominal, are recoverable. At common

1842.

Stevens

D.

Briggs.

CHITTENDEN, law, no costs were recovered; costs are, by statute, only an

January, 1842.

Stevens

v.

Briggs.

incident of the principal thing sought in the action. If the plaintiff fail as to the principal, he must fail as to the incident. A recovery by the plaintiff of costs, without debt or damages, would be a novelty. Chit. Pl. 397.

A plea of payment and satisfaction of the debt or damages, sought in the action after the commencement of the suit, is a bar, more especially where it alleges an acceptance, by the plaintiff, in satisfaction. Where two actions are brought against the same person for the same thing, satisfaction of the judgment in one suit, may be pleaded puis darrien continuance to the other suit. Chit. Pl. 456, and authorities there cited. Watkinson v. Englesby & Stokes, 5 Johns. R. 386. Bourne v. Joy, 9 Johns. R. 221. Prince, et. al. v. Nicholson, et. al. 1 Com. L. R. 124. (5 Taun. 333.) Parris v. Salkeld, 2 Wils. 137. Lovell v. Eastaff, 3 T. R. 554. Littleton v. Cross et. al. 10 Com. L. 285. Bird v. Randall, 3 Burr. 1345 Baylies, et. al. v. Fettyplace, et. al. 7. Mass. R. 325. Thompson v. Percival, 27 Com. L. R. 241.

The late English practice seems to be that, on a plea puis darrien continuance being interposed, the plaintiff is at liberty to admit the truth of the plea and discontinue without costs; but if he resist the plea he is liable for costs subsequently made if he fail. Wollen v. Smith, 36 Com. L. R. 180. Lyttleton v. Cross, 10 Com. L. R. 285. Baker v. Morrey, 17 Com. L. R. 168.

If the principle can be established that when separate actions are pending at the same time, against the maker and indorser of a promissory note, nominal damages and costs may be recovered in one action, after satisfaction in the other, it is an exception to the general rule, and introduced to facilitate the negotiability of commercial paper. It can have no application to a case where two actions are brought for the same cause against the same person. There is no justice in favoring a party who brings two suits against the same party. for the same debt, as it adds nothing to the plaintiff's security. If the plaintiff does so, he must not accept satisfaction in the one suit till he perfects his judgment in the other.

Maeck & Smalley, for plaintiff, contended that the payment of the original judgment, leaving the costs which had

1842.

accrued in this suit unpaid, would not bar the present CHITTENDEN, January, action, and cited Chitty on Bills, 8th Am. Ed. 570, 599. 2 Dallas, 115. Wattles v. Laird, 7 Johns. 327. 3 Petersd. Ab. 160, title, Bail. 12 Mod. 112. 7 Com. L. R. 289. 7 East, 536.

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, 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 VOL. XIV. W. R. IV.

7

Stevens

V.

Briggs.

January, 1842.

Kelly

v.

Hart.

CHITTENDEN, 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 debt 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. 11. 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.

HARRINGTON KELLY V. JONATHAN HART.

To constitute a sheriff's sale so that the sale will be valid against the creditor of the vendor, without a change of possession, the proceeding must be under the authority of the precept of the law, and the right to make the sale not rest upon the consent of the debtor.

THIS was an action of trover for two wagons and one horse. Plea, general issue, and trial by jury.

On the trial in the county court, it was admitted that the defendant took the property, in question, by virtue of a writ of attachment in his favor against one James A. Parsons.