Majority
p. 104*Cole against Grant. The Same against King. Cole et Ux. against Grant and King. Cole against Grant and King.
Headnote
Where there are joint and several suits against the same defendants, and costs allowed them in some, but damages assessed against one, in another, the costs allowed them in all may be set off against the damages recovered, but not against the costs in that suit, the plaintiff’s attorney having a lien on them.Costs had been allowed to the defendants in the three first of these causes, to 26 dollars and 58 cents, and in the last also, to Gideon King, to 14 dollars and 84 cents, but in the last cause damages had been assessed against Grant to 20 dollars besides costs, an l Cole was unable to pay the costs taxed against him.
Russel,
on an affidavit disclosing the above facts, moved
p. 105
to set off the costs allowed the defendants against the damages and costs recovered by the plaintiffs in the last.
Let the defendants have leave to set off their costs in the three first causes against 20 dollars damages recovered by the plaintiff in the last. The costs of the plaintiff’s attorney in the last suit not to be included in the set-off, as he has a lien for them.[1]
(a) (a) Spencer v. White, April, 1799; 2 Bla. Rep. 867, 869, 871; 4 D. & E. 123; see also Brown v. Cuming, ante, 34, n. (a,) and Schemerhorn v. Schemerhorn, 3 Caines’ Rep. 190 , n. (a.)