Majority
p. 247Devoy against Boyer. NEW-YORK, May, 1808.
Headnote
Where there were three suits between the same parties, and the plaintiff recovered against the defendant in two of them, and the defendant against the plaintiff in the other, the damages recovered in the last suit, were allowed to be set off against the two other suits, but not against the costs.THERE were three suits between the plaintiff and the defendant in this court. The first was on a promissory note, in which the plaintiff recovered damages. The second was on a-contract in which the plaintiff also recovered damages. In the third suit, there was a verdict for the defendant.
J. Strong, for the defendant,
now moved to set off the entire damages recovered by the defendant in the last suit against the amount recovered in the two other 'suits. He stated that the defendant was insolvent.
D. B. Ogden, contra,
said, that the plaintiff had no objection to the set-off, provided the costs of suit in the two first causes were paid.
The costs of the attorney for the plaintiff in the two first suits must be paid; he has a lien for them, which ought not to be affected by the set-off. It was so decided in the case of Cole v. Grants,[1] and that must govern our decision in the present case.
* 2 Caines, 105.