
    RUTLAND COUNTY.
    February Term, 1846.
    Executors of Peter Stevens v. Hartley Hollister.
    [Same Case, 18 Vt. 394.]
    A defendant, who takes exceptions to the decision of the county court, and who prevails upon his exceptions, is entitled to have his costs in the supreme court deducted from the plaintiff’s costs in the court below, even though the plaintiff ultimately prevail in the case.
    iN this case the county court rendered judgment for the plaintiff for full damages, and the defendant took exceptions. This court reversed the judgment of the county court, upon the ground that the rule of damages adopted was erroneous, but held, that the plaintiff, upon the facts found, was entitled, if he so elected, to have judgment for nominal damages; — and judgment was accordingly so rendered. A question was then made in regard to costs.
   By the Court.

The defendant, having prevailed upon his exceptions in this court, is entitled to costs here, to be deducted from the plaintiff’s ’ costs in the court below, even though the plaintiff finally prevail in the case. This rule may be esteemed, in terms, perhaps, somewhat different from that laid down by this court in 1 Aik. 409, but is certainly not different in principle. The rule here declared has been practiced upon for many years past, in taxing bills of cost in this court, and is believed to be more equitable and more salutary, than to have the right of the party, prevailing in this court, to recover cost, depend upon his ultimately prevailing in the suit. But we do not allow him an execution for costs immediately upon his prevailing in this court, but only the right to deduct his costs of this court, upon the ultimate taxation, if the other party finally prevail.  