Legal Opinion

Clark v. Rice

Supreme Court of Vermont

Decided January 15, 1834PublishedCited by 2 opinions

When the action was called for trial, and before the jury were empannelled, the defendant offered the plaintiff to permit him to take a judgment on the first count in his declaration, which the plaintiff declined. The cause proceeded to trial, and the jury found for the plaintiff on the first count, and for the defendant on all the other counts. The plaintiff claimed the costs of the jury trial, and the defendant claimed his cost on the counts on which he prevailed.

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When the action was called for trial, and before the jury were empannelled, the defendant offered the plaintiff to permit him to take a judgment on the first count in his declaration, which the plaintiff declined. The cause proceeded to trial, and the jury found for the plaintiff on the first count, and for the defendant on all the other counts. The plaintiff claimed the costs of the jury trial, and the defendant claimed his cost on the counts on which he prevailed. Counsel for defendant. — The common law did not allow cost to either plaintiff or defendant, the amercement of the vanquished…

1Opinion of the Court

The opinion of the court was pronounced by

Mattocks, J.

— We do not think it advisable to adopt the English practice of taxing cost both ways, where some of the issues are so found. The practice here has been otherwise, and it would be likely to occasion some troublesome contention whether the counts were for different causes of action, or whether they were synonymous. And although sometimes plaintiff joins a forlorn claim with a just one, yet the defendant can generally obviate this difficulty by a tender or bringing the money into court. But in this case, as the defendant tendered the…

2Cited by2 opinions

  1. Hart v. SkinnerSupreme Court of Vermont · 1844
  2. Edgerton v. SmithSupreme Court of Vermont · 1863

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