Grosvenor v. Rogers

The question is, whether the plaintiffs must accept the damages and lose the costs; or whether they are at liberty to proceed and enter judgment for the penally of the bond, which will carry costs. The statute only denies costs when a suit upon contract “is settled before judgment, and the sum actually due and admitted is not sufficient to carry costs. This language plainly imports the assent of both parties. But proceeding on the equity of the statute, the plaintiff has sometimes been compelled, in actions upon penal bonds, to accept the amount due by the condition, without costs. But it has been in cases where the amount could be ascertained by mere computation; and where the plaintiffs' *269right to recover had not been litigated before the tender was made. In this case the defendants have contested the plaintiffs’ right to recover for a year and a half: and now, after a report against them, and on the eve of a judgment, they propose to pay the damages assessed by the referee, and leave the plaintiffs to bear the costs of the litigation. The case is neither within the letter nor the equity of the statute.

Motion denied.