Brown v. Clark , 28 Vt. 690 ( 1856 )

The opinion of the court was delivered by

Bennett, J.

We think the judgment of the county court sliould be affirmed. If the case showed a breach of the condition of either recognizance, the judgment should have been, at all events, for the plaintiff for nominal damages and costs. The payments of the executions by Tarbell, after this suit was commenced, could not bar the action without a payment of the costs.

But We are to take the facts as agreed by the parties ; and those are, “that subsequently to said reviews, judgments were rendered in both of said actions, against the defendants therein, at the term, and for the amounts as stated in the plaintiff’s amended declaration.”

The statement in the amended count in the declaration is that .judgments were rendered for a given sum in damages, and for a given sum for costs, There is no averment that any part of the judgments for costs Were for costs that accrued after the reviews Were entered; and we cannot take judicial notice that any additional costs were allowed to be taxed by the court, subsequent to the reviews. Though the declaration avers that the plaintiff sustained intervening damages, yet there was no such fact in the ■case, and no proof of the averment that the plaintiff had been put to great additional expense in prosecuting his suits to final judgment.

When this case was before us at at a previous period, it was held that the mere affirmance of a judgment reviewed was not a breach ’of the condition of the recognizance for a review, unless intervening damages had been sustained, or additional costs had been recovered. See S. C. 27 Vt. 576. It may have been an omission in the agreement of facts, in its not showing that additional costs had been recovered.

The judgment of the county court is affirmed.