The opinion of the court was delivered by
This writ of error is brought to reverse á judgment of the county court, in an action for assault and battery, in favor of the present defendant against the plaintiff in error. It appears, by the record, that the action was originally commenced in the county court; that at the September term, A. D. 1840, the plaintiff recovered judgment for fifteen dollars damages, from which judgment the defendant reviewed, — and that, at the next term, the plaintiff again recovered, but the damages awarded him were only six dollars and fifty cents. That was the final judgment in the action ; and the question is, was the plaintiff entitled to recover full costs, or was he restricted in costs to the amount of damages finally recovered.
It is first insisted by the plaintiff in error, that this question should be governed by the statute of A. D. 1797, under which the suit was commenced. And if he is right in this, then it is already settled, by the cases of Parsons v. Young, and Robinson v. Whitcher and wife, 2 Vt. R. 434, and 563, that the plaintiff below, was only entitled to costs commen
The question must, therefore, depend upon the construction to be given to the 22d and 23d sections of chapter 106 of the Revised Statutes. The 22d section corresponds to the enacting clause of the 97th section of the old statute, and enacts, that in the action of assault and battery, and some others there specified, if the plaintiff shall not recover damages above the sum of seven dollars, he shall recover no more costs than damages. But there was a proviso to that section of the old statute, that " if the defendant appeal from 'such judgment, or review the cause, and final judgment ' shall be rendered for the appellee or reviewee, he shall ref cover full costs.” It was settled under that statute, by the cases already cited, that “ such judgment ” in the proviso, meant the judgment before described in'the enacting-clause, namely, a judgment not exceeding spven dollars in damages ; and that the appeal and review, there spoken of, alike had reference to such a judgment and no other.
We have now to inquire whether the 23d section of the new statute corresponds, in its operation, to the old proviso just recited. The words, directly applicable to the present case, are — " If the defendant shall, in any such action, review the cause, .... the plaintiff shall recover full costs.” On the part of the defendant in error, this is claimed as a general enactment, giving full costs to the plaintiff, in the actions specified, if the defendant shall, under any circumstances, review the cause, and ultimately fail in his defence ; whilst the other party claims to treat it as a provision, intended to apply only when one of those actions may happen to be in the state or condition mentioned in the preceding section.
It is obvious that, as a general provision, this section was
The 23d section of the present act will thus stand as a substitute for the entire proviso in the old statute. The difference of phraseology, occasioned by the words ££ in any such action ” inserted in the new section, does not necessarily create a difference in the sense ; because these words may be supplied by implication in the former proviso, when
The judgment of the county court is reversed, and judgment for the defendant in error to recover costs equal to his damages.