When this suit ivas brought there was a cause of action for money had and received exceeding the sum of twenty dollars. The case went to the law court, and was sent back, after the decision of some questions, for an assessment at nisi prius of damages for the plaintiff. During vacation before the cause came on for trial, the sum due the plaintiff was paid to another party authorized by law to accept payment of the same, leaving' the plaintiff without further foundation for his action. The case was referred, upon these facts, to the judge at nisi prius for decision of all questions, who ordered a judgment for the plaintiff for nominal damages without costs.
Had the defendant set up payment under a plea puis clarrein continuance, the facts would have supported the plea, and judgment must have been for the defendant, the plaintiff recovering costs up to the date of the plea and the defendant afterwards.
After such plea a plaintiff has an option to submit to it, or to proceed with his action. He recovers costs until such plea is interposed, because until then his action is well founded. But after that it would be wrongfully prosecuted. Up to that time he is the prevailing party, while after that the defendant becomes the prevailing party. Lyttleton v. Cross, 4 Barn. & Cress. 117; Coffin v. Cottle, 9 Pick. 287; Staples v. Wellington, 62 Maine, 9. It has already been so decided in this state. Leavitt v. School District, 78 Maine, 574.
No such plea was presented. But we are disposed to think the result should be the same, upon the ground that a reference to the sitting justice for a settlement of all the questions of the case would be regarded as a waiver of formal pleadings. Substituting this result for the entry made would give to each party his legal right.
Exceptions sustained so far as to modify the decision of the judge by allowing full costs to the plaintiff up to the first day of the March term, 1890, and full costs to the defendant afterwards.
Walton, Virgin, Uibbey and Whitehouse, JJ., concurred.