Smith v. Broyles , 54 Ky. 461 ( 1854 )

Judge Simpson

delivered the opinion of the Court—

The appellant did not sustain any injury by the surrender of the notes which were transferred to him by the executor, and the execution of new notes in lieu thereof by the appellees. This arrangement did not create any equity in his favor against the debtors, inasmuch as the loss occasioned by purging out the usury would have devolved upon him, if the notes had remained in the hands of the executor. As the appellant is the residuary devisee, any equity that would be available against the executor is available against him. The executor was not responsible to him in consequence of the assignment made upon the notes, nor has he any claim upon the testator’s estate for any loss he may sustain in the transaction. He was not prejudiced, therefore, by the surrender of the old notes with the assignments thereon made by the executor, and the acceptance of the notes sued on in lieu thereof.

The amount of usury in the transaction is correctly ascertained in the judgment of the chancellor. The payment of the bonus of fifty dollars on one occasion, is proved positively by one witness, and his statement is not inconsistent with the other proof on the same subject.

2. A successful party in any civil suit has a right to recover his costs, unless in the specified cases pointed out by the statute, though ho may not recover to the extent of his claim.

By the Revised Statutes (page 204) it is provided that the party succeeding in any civil suit or action on the merits or otherwise, shall recover costs, unless in the cases specified in that chapter. This is not one of the cases in which, by the provisions of that chapter, a Court of Chancery has a judicial discretion over the subject of costs. The party succeeding was entitled to his costs, although he did not recover the full amount claimed by him. The failure to give him a judgment for his costs was to his preprejudice, and in thisrespect only is the judment erroneous.

Wherefore, the judgment is reversed, and cause remanded, that a judment may be rendered in favor of the plaintiff for his costs. No judgment will be necessary for the sum due to him from the defendants, inasmuch as the record contains an acknowledgment by him of its payment.

The parties in this court must each pay their own costs.