Caverly v. Bushee , 83 Mass. 292 ( 1861 )

Bigelow, C. J.

The case of Lapham v. Norris, 10 Cush. 312, is decisive of the question raised by these exceptions. Neither party can properly be considered as entitled to costs as the prevailing party. After the set-off was filed, both became actors; the plaintiff to prosecute the claim alleged in the declaration, the defendants to establish their demand in set-off. The result of the case is that neither has succeeded in proving his claim.

The plaintiff only remained in court after the second term on the requirement of the defendants in order to try the account in set-off. Upon that he prevailed. It is wholly immaterial that they offered no evidence to support it. It was not withdrawn, and the result is the same as if both parties had recovered an equal amount against the other. Exceptions sustained.