Hartshorn v. Phinney , 48 Me. 300 ( 1861 )

The opinion of the Court was drawn up by

Dayis, J.

In the case of Gilman v. Pearson, 47 Maine, 352, in which the defendant offered to be<defaulted, but had no time for acceptance fixed, as he might have done under the statute of 1857, it was held that he was entitled to recover his costs from the time of his offer. In that case it was not accepted; in the case at bar the offer was accepted at a subsequent term.

In the case cited, it was held that the provision for having the time for acceptance fixed, being for the benefit of the defendant, it is at his option, whether to avail himself of it. If he does, and the offer is not accepted within the time, “ he then has all the advantages of it, without being bound by it.” But, if he has no time fixed, the plaintiff may accept it, if not revoked, at any time before trial.

By R. S., 1841, c. 115, § 22, in' order to entitle a defendant to costs, after an offer to be defaulted, the plaintiff must have “ proceeded to trial.” If he accepted the offer before trial, the defendant recovered no costs. Pingree v. Snell, 42 Maine, 53. But this was so held, on the ground that the statute of 1835, c. 165, § 6, was changed by the R. S. of 1841, so as to require a trial as one of the conditions requisite to entitle the defendant to costs. By the R. S. of 1857, the statute of 1835 is substantially reenacted. The provision making the defendant’s right to costs depend upon a trial of the case, has been entirely omitted. The only condition is, that the plaintiff shall “ fail to recover a sum, as due at the time of the offer, greater than the sum offered,” in which case the defendant recovers costs from that time. The case at bar is within the statute; and the defendant is entitled to his costs from the time of his offer. The plaintiff is entitled to no costs since that time. Exceptions sustained.

Tenney, C. J., Appleton, Gutting and Goodenow, JJ., concurred.