| Conn. | Nov 15, 1872
The plaintiff contends that the special matter of defence set forth in the defendant’s notice under the general issue could not be given in evidence in that state of the pleading, but that it was necessary for the defendant to plead it specially in bar of the further prosecution of the suit, inasmuch as it' is matter that had arisen since the suit was brought; that the issue between the parties raises the question whether, at the time the suit was commenced, the plaintiff had a good cause of action, and that therefore matter which may have subsequently arisen does not tend to disprove the issue. This may be true in theory, but we think that since the statute of 1848, a notice under the general issue has all the force of a special plea and supplies its place.
The statute declares that the defendant may give in evidence, under the general issue, any special matter of defence, according to the nature of the action, but that he shall not give in evidence any defence consistent with the truth of the material allegations of the declaration, unless at the time of pleading he shall file notice thereof in writing. Under such issue the statute seems to authorize the admission of any defense which may exist to the merits of the case, provided the defendant gives notice of the same in writing at the time of pleading. He does not seem to be confined to matters of defense existing at the time the suit was brought, and no good reason can be given why he should be. The plaintiff in this case was as much apprised of the grounds of defense by the notice that was given, as he possibly could have been by a special plea in bar to the further maintenance of thé suit; and why should he complain ? He does not pretend that any advantage has been taken of him, or could have been taken, but stands on the merest technicality. We think in these
The remaining question in the case is clearly governed by the case of Ayer v. Ashmead, just referred to, and that of Canfield v. The Eleventh School District, 19 Conn., 529" court="Conn." date_filed="1849-07-15" href="https://app.midpage.ai/document/canfield-v-eleventh-school-district-in-new-milford-6576225?utm_source=webapp" opinion_id="6576225">19 Conn., 529. Those cases expressly decide that costs in the progress of a case in court are incidental to the debt or damages sought to be recovered ; and that if the debt or damages are paid to the plaintiff, and accepted by him to his full satisfaction, so that there can be no further claim for any portion of the debt or damages as such, the costs which may have been made in the prosecution of the suit cannot be afterwards recovered by the plaintiff. The principle of these cases appears to be sound, and applies to the case at bar. It is not pretended that the costs in controversy in this case are an independent claim against the defendant, but it is conceded that it is necessary for the plaintiff to recover judgment of some amount as debt or damage before there can be a recovery of the costs that have been made. But the debt has been paid, and the payment has been voluntarily accepted in full satisfaction of all that is due the plaintiff as a debt, and on what principle can he be entitled to recover something more as debt or damages ? The voluntary acceptance of money in full payment of the debt operates as a discharge of the debt, and consequently as a discharge of the costs incident to the debt which otherwise he would have been entitled to recover. The tender of the debt by the defendant without a tender of the costs that had been made, would not have had this effect. It is the voluntary acceptance of the money as a full payment of the debt, that operates to discharge the costs, which until judgment are only an incident of the debt.
A majority of the court are of opinion that the plaintiff himself has put it out of his power to recover the costs in con