
    Elms & Co. vs. Beers & Bunnell.
    Payment made after suit brought cau not be given in evidence Under the general issue; but all matters of defence arising after action brought must be pleaded/>tó darrien continuance.
    
    Less than twenty 'pounds old currency will not carry costs, except in particular actions enumerated in the act of 1799. (see these exceptions, note 
    
    Tried at Charleston, in May teim, 1824, before Mr. Justice Huger.
    This was an action brought by Beers &s Bunnell the payees against C. Elms Co. the drawers of a certain bill of exchange for $600 upon Wm. P., Bason and protested for non-payment. It appeared from the statement of facts made by Mr. Eggleston, the plaintiff’s attorney, which statement was agreed upon on both sides and embraced all the facts in the case; that separate actions were commenced against Wm. P. Bason as the acceptor, and C. Elms Sf Co. as the drawers of the said bill of exchange at the same time. That the action against Wm. P. Bason was commenced in the city court, and the one against C. Elms fy Co. in the court of common pleas; that in October term 1823, judgment was obtained against Bason for the amount of the bill with interest and costs, that on the 5th day of December 1823, the said Wm. P. Bason paid up the full amount of the judgment against him and took from Messrs. Eggleston and Heriot, the plaintiff’s attornies, a receipt of which the following is a copy:
    “ In the city court,judgment, Oct. Term, 1823;
    
      Beers $f Bunnell, 1 Bill $600 vs. > Interest from 7th May 1S23, till") Wm. P. Bason. ) 7th Dec. 1823. )
    Protest, $ 2 00
    Costs, 33 00 35
    #660 08
    Received, Charleston 5th December 1723, by the hands of Mr. Robert Knight for the above named defendant Wm. P. Bason, the sum of six hundred and sixty dollars eight cents, in full of the above mentioned suit.
    £Signed,] Eggleston Ileriot.
    
    That on the 7th day of January 1824, the plaintiff’s attornies filed their declaration in this case in the usual form upon the said bill of exchange, and on the same day the defendants by their attorney put in their plea of non-assumpsit; whereupon issue was joined and the cause docketed for trial. Upon these facts it was submitted to the court whether or not the plaintiffs were entitled to costs. It was contended on the part of the defendants, that the plaintiffs were not entitled to a verdict for any part of the principal of the said debt or to costs in that action, and that on the contrary the defen. dants were entitled to a verdict. The presiding judge decided that the plaintiffs were entitled to recover costs; and for that purpose directed the jury to find a verdict for the plain» stiffs for one cent damages which was accordingly dpne. -A motion for a new.trial wa^made on the grounds:
    1st. That the presiding judge was mistaken, in point of law, in deciding that under the circumstances of the case, the plaintiffs were entitled to recover costs:
    2d. That under the plea of non-assumpsit, it was competent for the defendants to avail themselves of a payment made at any time before issue joined, or before tria!:
    3d. That no plea of payment made after suit brought, either puis darrien continuance, or against the further maintenance of the action was necessary in this case, as the fact ,of payment was not offered to be proved by. the defendants, but was admitted by the plaintiffs and stated by them as a •part of their case; and that the presiding judge misdirected ■the jury in charging them to .find for.th.e plaintiffs.
    
      Argued 3d March, 1825.
    
      Rice for the motion.
    Argued that the defendant could as well avail himself under the, general issue of payment made after action brought, as payment before action. The fact was stated by plaintiff himself, ndt: proved by defendant. Costs must depend on the judgment, and be determined by it. (Tidd. 864,12 John. Rep. 345.2 John. Gases 266-,) and until judgment no right to costs accrues.:' If so, and the plaintiff discharges the cause of action, of. course nothing remains upon which he can recover costs,. / i
    .It is on these principles that when suit is settled and nothing said about costs, that neither party are entitled to recover them of the other, (Watsons vs: Depeyster, .1 Caines’ Rep. 66. Johnston vs. Brannanj 5 '.Johns. Rep. 268.) ■ Plaintiff goes on the original caus.e" of action. . The case of Johnson vs. Brennan precisely similar'to this. (2 Mass. Rep. in.) . .
    It is competent lo proye payment made any time previous to. the trial of the issue. _ May shew payment or release, under the general issue. No difference in nature of things between payment made . before and after action brought. Under general issue payment after actí'«ü brought may be given in evidence. (7 Mass. Rep. 325, 3 Burrows, 1345.) In Burrows the payment was made by another party who was made liable. Can’t plead by special plea in bar, matter arising after commencement of suit, (4 East 502.)
    
      GrimJee contra.
    Mistake thatplaintiff’s statement made a difference. Did not follow that it was not still the evidence of defendant. When you plead in bar generally, you must shew no cause of action at the time of action brought. Non assump-sit refers to time of bringing suit. Weil settled rules must be adhered to. If defence arises after plea, it must be pleaded puis darrien continuance. It is necessary to prevent surprise* ' as one might be by an act done by a third person. (Cited 1 C'kitty Plead, 634.) Plea of matter since suit should be in bar of further maintenance, (20 John Rep. 414,) and can’t be pleaded in bar generally.
    Under non-assumpsit, the question is whether there existed the cause of action at commencement of suit. (Tidd 591. Doug. 106. 7. Gilb. C. P. 645.) Award pendente lite not admitted under non-assumpsit. (1 Munf. 22. Peake Evid. 248.)
    
      As to the costs, it was a matter for the jury; their finding fixed it. (2 Bren. Dig. 58. Tit. costs.) As to amending the verdict, cited 2 Dali. 115.
    The case of Johnston and Brannon depends on makers liability for indorsers costs. In this state he is not. Cited as to costs, 7 East 538. Chitty on Bills 444.1 John Rep. 290. 8 Johns. Rep. 356. 2 M‘ Cord’s Pep. 46L
    The case in 3 Burr, not in point. The-satisfaction was before action brought.
    Rice in reply .
    Rule has always been in New-York, that maker is not liable for indorsers costs.
    
      
       The exceptions alluded to are “ all actions of tresspass to try titles to lands; in all actions of tresspass on the case, in all actions o/trover, and in all actions of detinue, or any of them brought to establish or try the right of title in any kind of property, if the plaintiff establishes his right'of property therein, he shall in every Such case recover and have his full cost of suit, Wherein the verdict shall be aboye four dollars.” 1 Brev. Dig. 194.2 Faust
      
    
   Colcock J.

Whatever may have been the intention oP the jury in this case, it is clear that the plaintiff is not entitled to costs on their finding. Less than twenty pounds old currency will not carry costs (by act of 1747,) except in particular actions enumerated in ,the act-of 1799. The amount in dispute is, however, too small to vvarrant the court in interfering with the verdict, de minimis non curat lex. ■ But there are some questions which have been raised in this case on which the court think proper to express an opinion. It has been contended that payment may be given in evidence under the general issue, even where it has been made alter the commencement of the suit; and the court have been referred to the case of Brennan vs. Egan. (4 Taunton 165,) and Bird vs. Randall (3, Burrows, 1345.) But on examination neither of these cases support the-position. It is well established that payment may be given in evidence under the general issue where it is made befisre action brought; because it goes then to shew that---.the plaintiff had no cause of action when the.suitwásponiménced. But even this as Lord Holt observes, is a practice which has crept in improperly, though now too long settled to be altered, (1. Chitty472 3) Where the matter of defence arose before the commencement of the suit, actio non, 4*c. is generally the proper commencement of the plea. But no matter of defence arising after action brought can properly be pleaded generally, but ought to be pleaded in bar of the further maintenance of the suit; and if matter of defence arise after issue joined it must be pleaded jiuin darrien continuance, (l Chitty .389.) Thus the defendant in such cases, can always obtain the leave of the court to put in such plea as will meet the justice of the case on payment of the costs due; or he may on motion obtain an arder to stay proceedings on the payment of costs, unless the plaintiff deny the fact, in which case the court will give him leave to plead, and they may proceed, to trial.

Rice, for the motion.

Crimlce, contra,  