M'Lees v. Avery

Willard, Justice. —By the 385th section of the code, the defendant was entitled to costs of the suit against the plaintiff, which accrued subsequent to his offer. The plaintiff was entitled to costs up to the time when the offer was made. The question is, can an extra allowance be made to the defendant, under the circumstances of this case. An extra allowance cannot be made unless the party in whose favor it is claimed has recovered judgment in the cause. This is obvious from an attentive examination of § 309. The 1st subdivision'is, that if the plaintiff recover judgment, the extra allowance shall be upon the amount of money, or the value of the property recovered, or claimed or attached, &c. 2d. If the defendant recover judgment, it shall he upon the amount of money, or the value of the property claimed by the plaintiff, &c., &c. The defendant did not recover judgment in 'this cause, but the judgment went against him. He does not fall within the scope of the section and is entitled only to the costs which accrued subsequent to the offer. These costs axe to be collected by motion, and probably may, on a proper applica [442] cation, be set off against the plaintiff’s judgment. The term costs embraces merely the ordinary costs of the suit, and not the extra allowance spoken of in sections 308 and 309. I think the defendant is not entitled to an extra allowance in this case. Motion denied.