It is enacted by a statute of this State, that in all appeals taken in virtue thereof, from a justice of the peace, when it shall be made to appear to the court, that the appeal was taken merely for delay, the court shall award fifteen per cent, damages. [Clay’s Dig. 315, § 13.] . After the appeal in the case before us was taken, the authority of the justice to receive the money he had adjudged to the plaintiff ceased, and the plaintiff himself could not have been compelled to accept it, unless he was also paid all costs that had accrued, as well as the damages which the court is directed to award, where the object of the appellant is delay. Yet if the judgment is satisfied, the appellee will not be allowed to proceed in the higher court merely for the purpose of recovering these damages, although he receives the money with a protestation that he will not yield them up, and insists upon the right to recover them. The damages are merely consequential, if allowed, they are to be calculated upon the amount of the judgment which the appellate court may render, and if the indebtedness is discharged by the reception by the creditor of his demand, then there is nothing upon which to rest a judgment for damages.
If the appeal had been returned to the circuit court and the money afterwards paid to the plaintiff, he would have been entitled to recover his costs up to that time, with the costs of a judgment disposing of the case. But such is not the situation of the present case. Here the money was paid by the defendant, and received by the plaintiff,' while the papers were in the possession of the justice j and up to this time he was entitled to recover all costs. But the acceptance of the money, we have seen, satisfied his demand; notwithstanding which he directed the appeal to be returned, and attempted ■to prosecute his suit. His claim was extinguished before the case found its way to the circuit court — -no judgment could there have been had by him — consequently he is not entitled te the costs of the circuit court.
True, in a proper case, it is a matter of discretion with the court, to which an appeal from the justice of the peace is taken, whether the statute damages will be awarded; but if they are adjudged in a case in which they are not recoverable, it is a fatal error. The consequence of what we have *169said, is, that the circuit court misapprehended the law — its judgment is therefore reversed, and the cause remanded, if desired.