
    
      BOLTON & AL. vs. HARROD & AL.
    
    Appeal from the court of the first district.
    If the endorser be sued on the protest for non acceptance, in order to compel him to give security, and afterwards, on the protest for non payment, on judgement being obtained in the last suit, the plaintiff cannon recover costs in the former.
   Martin, J.

On the 30th of August, 1819, the present suit was brought for the purpose of obtaining security for the payment of a bill of exchange (endorsed by the defendants to the plaintiffs, and protested for non-acceptance) at its maturity.

East’n District.

June, 1821.

On the 20th of November following, the present plaintiffs instituted another suit against the defendants, to obtain the payment of the amount of the bill, which had been, in the mean while, protested for non-payment, in which a judgment was given for the plaintiffs, which was affirmed by this court, on the 7th of March last. 9 Martin, 326.

On the 12th of April last, the district court gave the following judgment: This court is now called on to give judgment for costs against the defendants. This cannot be done. Costs are incidental to a judgment, as interest to the principal. If that be paid, judgment cannot be rendered for the interest. Neither can a party be decreed to pay costs, unless there be a final judgment in the matter in controversy between the parties, or a judgment of non-suit or dismissal. As no decree can be made in favour of the plaintiffs, the petition must be dismissed ; and on all cases of dismissal, the plaintiffs must pay costs. It is ordered the petition be dismissed with costs.”

I think the district court was perfectly correct. The plaintiff’s right of action, or the protest for non-acceptance, was merged in the right which resulted from the protest of non-payment, and when the matter became res judicata, by the judgment, all antecedent right was destroyed.

Hennen for the plaintiff, Livingston for the defendant.

The principles invoked by the district court, were recognised by the superior court of the late territory. Pitot vs. Faurie, 2 Martin, 83. Nugent vs. Delhome, 383.

Mathews, J.

This case, as it now stands before the court, relates solely to a dispute about costs. The general rule is, that costs must follow the judgment ; and I see nothing in the manner in which the present cause has been conducted, to require that it should be made an exception to that rule.

It is therefore ordered, that the judgment of the district court be affirmed with costs.  