Gale v. Cooper

[598] The opinion of the court was delivered by Williams, C. J. The exception to the report of the auditor has not been urged in the argument, but the only question is, whether the plaintiff or defendant, or either are entitled to cost. All the cost in the case, whether it accrued in the trial before the auditor or before the county court, should be taxed by the county court, and unless exceptions are taken to particular items, as whether too much or too little travel, &c., werel allowed, and the facts in relation thereto are stated by the county court, they cannot be noticed by this court. For this reason the only enquiry in this case is, whether the party is entitled to any costs. It appears that the defendant in this case commenced an action on book, against the plaintiff, Gale ; the writ was dated £3 November, 1836, served the first of December, ;and made returnable to a magistrate in Irasburgh, on the 16th of December, and that on the 16th December, judgment was rendered thereon by default; — that Gale commenced his suit on the second of December, the day after the service of the other writ, and that it was made returnable before a justice in Sutton, on the 15th of December, the Aay before the other writ was returnable. This suit is the one now before us. It has been settled ’ that mutual actions on book may be maintained, and that each is independent of the other, though I think a different rule and practice would have better comported with the statute. The statute of 1819 was passed to regulate costs where a defendant, who had been sued in an action on book and had had an opportunity to avail himself of his account, should afterwards commence an action to recover the amount of such account. That statute only applies to those cases where the second action was commenced after a recovery in the first. It speaks of the defendant’s neglect to plead his account, which could only be at the trial, and it also mentions the records of the first judgment. This statute cannot be extended to a case like the present, unless by a judicial legislation, which we are not at liberty to adopt. While these mutual and independent actions on book are permitted, I see not why a defendant should be compelled to follow a suit commenced by a [599] plaintiff, when in point of fact the plaintiff may be indebted to him and it may be necessary to commence a suit to obtain security therefor. One party as well as the other may prefer to have his account settled in the town where he resides rather than travel to the town where the other resides. The law did not compel Cooper to abandon his suit and have his accounts with Gale adjusted in the trial before the magistrate at Sutton, on the fifteenth of December, nor did it compel Gale to have his accounts adjusted before the magistrate at Irasburgh, on the sixteenth of December. As the statute has made no provision in relation to costs in such case, the party recovering in each action is entitled to his cost. The judgment of th$ county court is, therefore, affirmed.