Marshall v. Burton

5 Del. 295

• Court: Superior Court of Delaware
• Decided: July 5, 1850
• Status: Published

Opinion

By the Court.

These three claims might properly have been embraced in one suit, and the plaintiff could not split them properly. Yet he might waive a part of his claim. The suit for $12 50 might therefore have been maintained, without objection on this score; and the result of it any way would prevent a recovery in the other cases. If the defendant in this case had pleaded his set-off of $36, to that case, it would have decided that, and the objection of splitting a cause of action would have been fatal as to the other. But the parties agreed not only to refer the three cases, but that the referees, properly appointed in this case, might consider all matters in controversy between the parties, and the judgment was on a report regularly made for $3 00 debt and $10 06 costs. Among these costs arc $1 30, belonging to the other cases, which is error; but it will not do to reverse a judgment for error in taxing costs. We correct the amount of costs, and affirm the judgment.

Judgment affirmed; costs taxed at $8 76, instead of $10 06.