Williams v. Horgan & Horgan , 6 Duer 658 ( 1856 )

Where one of several defendants, who has by separate answer made a separate defence, and is not united in interest with the others, succeeds on the trial, he is not in any action, legal or equitable, entitled to costs, as of course, but must apply for them to the court. (Code, § 306.)

But if there is a union of interest, and the defendants have, by their answer, denied the allegations of the complaint, whether they answer jointly or separately, and if the case be one of those mentioned in section 304, then, if either defendant obtains a verdict, he will, as a general rule, be entitled to costs, as a matter of course, under section 306.

But, although the defendants be sued as joint contractors, yet, if they answer separately, and either sets up a defence personal to himself only, as infancy, or the like, and succeeds at the trial, it is within the discretion of the court to award him costs, or to deny them to him.

Slosson, J., decided as above stated, and the case is reported in 13 How. Pr. R. 139.^*

The learned Judge intimated in his opinion in this case, that when a plaintiff sues several as joint contractors, and proves that only a part of the defendants were ever liable, he cannot recover against either. It is, probably, now well settled, that he may recover against such as are proved to have been parties to the con tract, and that the others may have a verdict and judgment in their favor. (Claflin v. Butterly & Devin, 5 Duer, 327.)—Rep.