#### Zweig vs. The Horicon Iron & Manufacturing Company.

*Equity*— Abatement *of dam for non-payment of costs of suit.*

1. In an action to abate a mill dam by one who had obtained a judgment against the owner of the dam, for fiowage, execution whereon was returned *nulla bona,*this court, on appeal, remanded the cause with directions to the court below to retain the suit until the plaintiff should have made a second effort to collect his judgment by execution; and that upon the payment of the judgment *cund of the costs in the equitable action,*the latter should be dismissed; otherwise the plaintiff should have the relief demanded. The amount of the judgment was afterwards made on the execution, but the costs of the present suit were not paid. *Held,*that the plaintiff was entitled to a judgment in this action requiring the costs to be paid within a reasonable time to be fixed by the court, or that on default of such payment the dam be abated.

2. But no such judgment having been taken, it was not error to deny a motion by the plaintiff to abate the dam.

APPEAL from tbe Circuit Court for *Milwaukee*County.

Action to abate a mill clam. A report of tbe decision on a former appeal, with a statement of tbe case, will be found in 17 Wis., 362-372.

*J. M. GHlhtt*and *S. U.*Pinney, for appellant.

*W. P. Lynde*and *B. Gr. Ryan,*for respondent.

Downer, J.

This cause bas been jneviously before tbis court, and is reported in 17 Wis., 371. Tbe court there decided that tbe plaintiff was rightly in court, and bad a right to tbe relief demanded: but, as a matter of discretion, and more to protect tbe lessees of tbe corporation defendant than tbe corporation itself, directed tbe ebeuit court to retain tbe cause until tbe plaintiff bad made a farther effort to collect tbe judgment by execution; and that upon tbe company paying tbe judgment and the costs of tbis action, tbe complaint should be dismissed; otherwise tbe plaintiff should have tbe relief demanded. It appears that an execution was issued, and tbe amount of tbe judgment made. Tbe plaintiff then bad bis costs in tbis action taxed, and demanded payment, and, they not being paid, moved tbe court for an order to remove the mill dam. This was denied; and from that order denying tbe motion tbe plaintiff bas appealed to tbis court.

*41It appears to us that the proceeding was irregular. If the judgment had not been paid or made on execution, what judgment should the circuit court have rendered in this action ? It would have adjudged that there was due to the plaintiff from the company a certain sum, being the full amount of the judgment at law and the costs in this action, and ordered the company to pay it by a certain day, or within a certain number of days after the service of a copy thereof on the company, or in default thereof that the mill-dam be removed. Or if it had in the first instance ordered the mill-dam removed, it would have been with a clause, unless the amount so ascertained to be due should be paid before it was removed. The judgment at law having been ¡said, it appears to us that the plaintiff should proceed in the same manner to judgment for his costs in this suit that he would have proceeded if Ms whole demand remained unpaid, and that the judgment for costs, if he wishes to remove the dam if it is not paid, should have the same conditions. It is true, as a general rule, that where a debt is paid after suit is commenced and before judgment, or where the plaintiff does not recover judgment for the relief demanded in his complaint, he is not entitled to costs. But we consider this case as an exception to the general rule; that the plaintiff’s right to costs was fixed by the previous decision of this court; and that those costs attach to the original claim, this action being but part of continuous proceedings for its collection.

*By the Court.*— The order of the circuit courtis affirmed, with costs.