Matthews v. Vining

38 Mass. 335

• Court: Massachusetts Supreme Judicial Court
• Decided: November 2, 1838
• Status: Published

Opinion

But it was resolved by the Court, that the plaintiff was entitled to costs against the defaulted defendants, only to the time of the default. [See Revised Stat. c. 121, § 34.] And the Court remarked, that in the case of the Proprietors of Kennebeck Purchase v. Boulton, the plaintiffs recovered judgment against all the defendants ; but that here White, against whom the plaintiff discontinued, was the prevailing party, and the effect of the proceedings was to disjoin the defendants and to show that White ought not to have beén sued. And in respect to Wells et al. v. Banister et al. & Tr., where the plaintiffs recovered costs against the defendants, who had been defaulted, to. the time when the trustee was discharged, they said the plaintiffs, were pursuing the trustee in order to enforce their remedy against the principal defendants, and to which they were compelled by the neglect of the principal defendants to pay the debt.