
    Hiram E. Hartford vs. Coöperative Mutual Homestead Company.
    Middlesex.
    Jan. 11.
    Feb. 23, 1881.
    Colt & Field, JJ., absent.
    If a general judgment for the defendant is rendered in an action in which he has filed a declaration in set-off, neither party is entitled to costs.
    Appeal from the taxation of costs. The record showed the following facts:
    The action, which was in contract, was brought for the benefit of William W. Aylwood, the plaintiff’s assignee. The defendant answered with a general denial, and also filed a declaration in set-off upon two judgments in its favor against the plaintiff. The answer to the declaration in set-off denied the defendant’s right to recover, because of the assignment of the claim sued upon and notice thereof to the defendant before the cause of action accrued. The jury found specially that the notice to the defendant of the assignment was given before the date of the claim in set-off. The case was then submitted on agreed facts to the Superior Court, which ordered “judgment for the defendant.” The plaintiff appealed to this court, which affirmed the judgment. See 128 Mass. 494. The clerk of the Superior Court refused to tax costs for the defendant as against the as signee of the plaintiff; and, on appeal to the court, the ruling was sustained. The defendant appealed to this court.
    
      6r. Stevens 0. 3. Gonant, for the plaintiff.
    
      S. W. 3atheway, for the defendant.
   Morton, J.

This case is governed by Gaverly v. Bushee, 1 Allen, 292. After the defendant filed its declaration in set-off, both parties were actors, the plaintiff to establish his claim declared on, and the defendant to establish its claim in set-off. The result of the case is that neither party has succeeded in proving his claim, and neither is entitled to costs as the prevailing party. Lapham v. Norris, 10 Cush. 312.

Judgment affirmed.  