
    Honora O’Connell vs. Nathan L. Bryant & another.
    Middlesex.
    January 7. — 28, 1879.
    Colt & Endicott, JJ , absent
    Two persons sued together - in tort, who sever in their, answers, although the> appear by the same attorney, are to be treated as separate parties, and each of them, if he prevails, is entitled to separate costs, except for money paid out for expenses by the two jointly; and, if the plaintiff appeals from the taxation of costs, and the defendants prevail upon the appeal, they are entitled also to the costs thereof.
    Tort for breaking and entering the plaintiffs close in Lexington. The defendants, appearing by the same attorney, filed several answers, each containing: 1. A denial of the plaintiff’s allegations. 2. A justification of the defendant’s acts, as done as, or under the authority of, a surveyor of highways of Lexington within the limits of the public highways in that town, and for the purpose of repairing them. 3. A license from the plaintiff. The verdict was for the defendants. The clerk taxed full costs to each defendant for attorney’s fee, travel and term fees. The Superior Court affirmed the taxation; and the plaintiff appealed. A. Russ, for the plaintiff.
    
      C. Robinson, Jr., for the defendants.
   Gray, C. J.

By the well settled practice, two persons sued together in tort, who sever in their answers, although they appear by the same attorney, are to be treated as separate parties, and each of them, if he prevails, is entitled to separate costs, except for money paid out for expenses by the two jointly. Gen. Sts. c. 156, § 1. Mason v. Waite, 1 Pick. 452. Fales v. Stone, 9 Met. 316. George v. Reed, 104 Mass. 366. Upton v. Pratt, 106 Mass. 344. And the defendants, having prevailed upon this appeal, are entitled also to the costs thereof. Gen. Sts. o. 156, § 26. New Haven Northampton Co. v. Northampton, 102 Mass. 116, 126.

Taxation affirmed, with costs of appeal.  