
    Joseph Binns, Plaintiff in Error, v. Jas. H. Brittain et al., Defendants in Error.
    Costs. — If one of several defendants, jointly sued in trespass, be acquitted, he is entitled to a judgment against the plaintiff for his cost, expended in defence of the suit. Hutch. Code, 881, $ 17.
    IN error to tbe Circuit Court of Kemper county. Hon. John Watts, judge.
    
      Freeman and Dixon, for plaintiff in error.-
    
      J. 8. Samon, for defendants in error,
    cited, Hutcb. Code, 881, § IT.
   Smith, C. J.,

delivered tbe opinion of tbe court.

Binns, plaintiff in error, brought an action of trespass against Jas. H. Brittain, Thos. H. Hampton, and William S. Hampton. These parties were tried jointly, and a verdict rendered, by which Brittain, and Wm. S. Hampton, were convicted, and Thos. H. Hampton acquitted. Judgment was entered for costs, in favor of Thomas H. Hampton. At the following term, a motion was made by the plaintiff for a re-taxation of the costs.

: It appears that the plaintiff was taxed with one-third of the whole costs of the suit; and consequently, that the parties found guilty were taxed with but two-thirds of them. The motion was based upon the supposition that, although one of the defendants was acquitted, the plaintiff was not chargeable with his costs, but that they should have been taxed against the parties who were convicted.

There can be no doubt that the judgment for costs, in favor of the defendant who was acquitted, was correct. The statute is express upon the subject. Hutch. Dig. 881, § 17, Cost Clause. The plaintiff was taxable with his costs, precisely as if there had been no other person sued in that action. The clerk fixed the amount of these at one-third of the entire amount of the costs in the suit. The proper costs of the party acquitted may have been less than one-third, or more than one-half, of the whole. The record furnishes no information on the subject; and as the motion to retax was overruled, we are bound to presume that no error was committed by the clerk.

Judgment affirmed.  