Catlin v. Taylor

18 Vt. 104 | Vt. | 1846

The opinion of the court was delivered by

Bennett, J.

The plaintiff brought his action for a breach of warranty, relative to the manure sold, before a justice of the peace, and, upon trial upon the merits, judgment was rendered in favor of the defendants. The plaintiff appealed, and, twelve days before the session of the court, to which the appeal was taken, he paid the defendants’ costs. The question is, what shall be the effect of such a state of facts upon the rights of the plaintiff? Is he precluded from farther litigating the same matter in another action ?

The statute provides, that any party, having appealed' from the judgment of a justice of the peace to the county court, may at any time, not less than twelve days before the session of the court, to which the appeal is taken, tender and pay to the creditor in such judgment, or to his agent, or attorney, the amount of the judgment,' with twelve per cent, interest, or may leave the amount with the justice, who rendered the judgment; and, if he does not do this, he may tender a confession, — which it is made the duty of the justice to record ; and in either event, there shall be no affirmation of the original judgment in the county court.

We think the appellant, whether plaintiff, or defendant, has a right to put an end to the suit in the manner pointed out in the statute. If a confession of judgment is given, it is quite clear, that the effect must be the same upon the matter in controversy, as if the original judgment had not been suspended by the appeal. If, instead of confessing judgment, the appellant pays the judgment, this, in a certain sense, may be considered as equivalent to an affirmation of the judgment by the consent and act of the parties, and should be regarded as a voluntary renunciation of the right farther to litigate the same matter. If the plaintiff appeals, (as in this case,) and then pays the defendant’s costs, we must regard it as an abandonment of the cause of action, and as conclusive upon him. This may be in analogy to a retraxit at the common law, which is a bar to a second action.

Judgment of the county court affirmed.