Lapham v. Norris

By the Court.

The defendant’s claim for costs was rightly disallowed by the court of common pleas. After an account filed in set-off, the plaintiff cannot discontinue without the consent of the defendant. Rev. Sts. c. 96, § 24. Both parties are actors, and such was the condition when the case was referred to an auditor. Each had power to proceed, take out a commission, and procure a report, and in case of being the prevailing party, recover costs. But neither party did proceed within the spirit, if not the terms of the rule, (Rule 5, 1850.) The parties were equally in default, and the defendant was not entitled to costs as in case of an ordinary discontinuance by the plaintiff. Costs disallowed.