Hoyt v. Blain

[189] By the Court, Sutheíiland, J. The sum recovered by the plaintiffs in the original action was not sufficient to entitle them to costs; the defendant was therefore entitled to judgment against the plaintiffs for his full costs in this court, 2 R. S. 615, § 16, the case not falling within any of the exceptions mentioned in § 8 and 9. The cause having been tried at the circuit, the defendant’s costs undoubtedly exceeded the plaintiff’s recovery, and nothing was due to them. In such a case there is to be but one record, which gives judgment to the plaintiff for the damages recovered, and for the defendant for his costs ; if the plaintiff refuse to make, up such a record, the defendant upon application to the court, will have leave to do it. In this case, the defendant’s attorney knowing that his costs exceeded the plaintiffs’ recovery, and knowing the plaintiffs to be insolvent, thought it unnecessary to take any further steps in the case, taking it for granted, as he well might, that the plaintiffs would never attempt to collect their damages. Their subsequent proceedings upon the scire facias can hardly be considered as had in good faith: nothing was due to them, and they and their attorney knew it. Where a scire facias is prosecuted in good faith, and in a proper case, costs follow the recovery, no matter how small the amount: the statute is express upon this point, 2 R. S. 613, § 3; but this is not a case of that description. The defendant, therefore, has leave to enter a suggestion upon the original record filed in this cause, awarding to him his costs as of that time, which he will be allowed to set-off against the plaintiffs’ damages in the original action, and all the proceedings upon the scire facias are set aside. No costs of this motion to either party, one having been irregular and the other negligent.