By the Court,
Savage, Ch. J.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.