Kavanagh v. Askins , 2 Me. 397 ( 1823 )

But if the judgment is to be disregarded, still it is evident, from a comparison of the two verdicts, that the plaintiffs in review are the prevailing party. The jury were instructed in both cases to compute interest from the date of the writ, on whatever sum they might find to be due. Under this direction they returned a verdict at September term 1820, for $2308, and interest from the date of the writ, which was August 1819, amounting in the whole to $2463,23 ; — and again at September term 1823, for $2060 and interest from the same date, amounting in the whole to $2557,42. The capital sum being the only subject of dispute, and this sum being found by the last jury to be less by 18258 than was estimated by the first, the plaintiffs in review have succeeded in correcting an error to that amount against themselves, and so are the prevailing party in this action.

The argument from Stat. 1813. ch. 172. is unsound, that statute being not now in force in this State. Though not repealed in express terms, it is so by implication ; the whole subject of costs in general, and of reviews, having been revised by our own legislature.

The arguments of the counsel, of which the foregoing is a brief abstract, having been submitted in writing to Weston J. before whom the cause was tried, and by him communicated to the other Judges, the Court, after deliberation, ordered the Clerk to enter judgment for the plaintiffs in review for their costs of the review, as the “ party prevailing.”