
    
      -v.-
    
    
      Costs. Offset.
    
    The defendant in an action of book account from whom a balance on book is found duo, but who recovers a larger sum in his favor upon a plea or declaration in offset, and thus prevails in the action, will be allowed his term fee and travel each term, and an attorney fee upon the trial of the offset, but not upon the judgment to account or the acceptance of the report.
    A question in regard to taxation of costs, in this suit in which the judgment was affirmed, at the last term, was brought before the court this term.
    The action was book account, in which judgment to account was given the first term, a trial was had before the auditor and a report for the plaintiff and exceptions to the report, and judgment upon the report, in favor of the plaintiff. The defendant at the first term, within the rules of the court, filed an offset upon contract, which lay by, till the suit upon the account was finished and final judgment rendered for the plaintiff. The trial then being had upon the offset, the defendant recovered an amount sufficient to over-balance the amount recovered by the plaintiff, upon his account; and final judgment was rendered in the county court, for defendant, for the balance. Exceptions being taken to this judgment, it was affirmed in this court, at the last term. The defendant had taxed full costs, both upon the trial of his] offset, and the judgment to account, and trial before the auditor, to which plaintiff excepted,
   By the Court :

Since the rule laid down in Briggs v. Brewster, 23 Yt. 100, we have been very much inclined to apportion costs according to the equity of the case, where each party prevails in part. We have not fully adopted the English rule of allowing the prevailing party, to tax costs upon each seperate issue, which is the only just ground of taxing costs, as every one can see. But we endeavor to approximate justice. In the present case, as the defendant was necessarily kept in court, all the time to reach his offset, and finally prevailed in the action, he will be allowed to tax a term fee and travel, at each term, and an attorney fee, when he prevailed in a trial, but no costs before the auditor, where the decision was against him, and no attorney fee on the judgment to account or on the acceptance of the report.  