Morse v. Mayberry , 48 Me. 161 ( 1859 )

The opinion of the Court was drawn up by

Kent, J.

When, in a former action, the plaintiff has had costs awarded against him, he cannot sustain a suit “ upon the same cause of action, until such costs are paid.” R. S. of 1857, c. 82, § 101.

In this case, the only question is, whether, if the second suit contains items additional to those in the first suit, the statute .provision, as to payment of costs, applies. We think it does. The object of the statute is to prevent a party from being harrassed by successive suits, by an irresponsible plaintiff, or by one who will not, if he is able, pay the costs awarded against him. This object would be in a great measure defeated, if the plaintiff could avoid the effect of non-payment, by bringing a second, or third, or fourth suit, and, in each, adding some new item of claim, which might be a just or an unjust claim. When the second suit contains the “ same cause of action” as the first, it cannot be prosecuted until the costs of the first suit are paid, although the second may contain additional claims. This decision is clearly within both the letter and spirit of the statute. Exceptions overruled.

Tenney, C. J., Rice, Appleton, Davis and Goodenow, JJ., concurred.