Williams v. Wright — 1 Wend. 277

Majority

p. 277

Williams ads. Wright.

Headnote

The party prevailing on the whole record is alone entitled to costs. Altho' defendant succeed on an issue of law, where there are two issues, one of law and the otherof fact, he is not entitled to costs, if the issue of fact be found for the plaintiff.

This was a motion to set off the defendant’s against the plaintiff’s costs. The action was replevin. The declaration contained three counts, alleging the taking of the same property in three several places. To the first count the defendant put in two avowries, and to the second and third counts plead cepit in alio loco, with an avowry for a return of the property, and non cepit to the whole declaration. The plaintiff demurred to the avowries, one of which was determined in favor of the plaintiff, the other in favor of the defendant. On the trial of the cause at the circuit, the plaintiff claimed to recover on the two last counts of his declaration, and obtained a verdict on which judgment was entered. The defendant now insisted that he was entitled to costs on the demurrer determined in his favor, and claimed that the same be allowed as a set-off against the plaintiff’s costs. The defendant had not obtained his costs to be taxed.

J. Willard, for defendant.

p. 278

S. Stevens, for plaintiff.

By the Court,

It is a sufficient answer to this application, that it is not shewn that the defendant has had a bill of costs taxed, which he can claim to be set off. But had he obtained his bill to be taxed, he would not have been entitled to set it off against the plaintiff’s costs in this case. The application is made on the supposition, that the defendant having prevailed on one of the issues of law, is entitled to the costs of that issue. This is not so. The party prevailing on the whole record, is alone entitled to costs. Here the plaintiff has prevailed: he obtained a verdict on the second and third counts of his declaration, which were for the same property claimed in the first count, and has entered his judgment accordingly. The rule is, if there be two counts, and an issue of law be joined on one, and an issue of fact on the other, if the defendant succeed upon the demurrer, and the plaintiff upon the issue in fact, the plaintiff shall have his costs on the issue in fact, but the defendant shall not have his costs on the issue in law. (2 Burr. 1232. 5 East, 264. 2 Archb. Pr. 286.)

Motion denied.