
    *William Trapp v. James M’Kenzie.
    Where an action of trespass is commenced against A and B, and a verdict is found against A, hut B is found not guilty; B is entitled to tax his costs against the plaintiff.
    Kershaw, November Term, 1820.
    This was a rule on the clerk to show cause why he should not tax costs under the following circumstances: Wm. Trapp had brought an action of trespass against Wm. Matheson and the said Jas. M’Kenzie, for entering his enclosed lot in Oamden, and taking away several bales of cotton. The jury had found a verdict in favor of Wm. Trapp, against Wm. Matheson, but had found Jas. M’Kenzie “not guilty.” The plea was a joint plea, and the subpoenas joint, but the appearance several.
    The presiding judge, Mr. Justice Richardson, decided that the rule should be made absolute, and that the plea and subpoenas should be taxed as well as the judgment and execution.
    A motion was now made to reverse the decision, upon the grounds, that there is no law in this State, which entitles one defendant to costs where a verdict is given against his co-defendant in trespass.
    
      Blanding and Holmes, for the motion. Levy and ffl Willie, contra.
   The opinion of the Court was delivered by

Richardson, J.

The Act of IT91, 1 Faust, 5, 1 Brev. Dig. 339, declares, “ that the several and respective fees hereinafter mentioned, &c., shall be paid, &c., for the different services in the respective suits, &c., in lieu of all other demands, &c.” And the same Act repeals all other Acts upon the same subject, (fees.) The clause first recited, renders any litigant, who may employ an attorney, liable to him for certain fees according to the specific professional services performed, and the invariable construction placed upon the same clause, has been, that such litigant, if successful in his suit at law, or in his defence, may recover over against the opposite and unsuccessful party, the like fees by way of ^reimbursement for his expenditure sustained in such suit or defence. Now there L can be no doubt that Jas. M’Kenzie was liable to his attorney for the appearance, plea, subpoena, judgment, &c., in this case. And he is as much within the reason and expression of the Act, as any other successful litigant. The verdict proves that he had been sued improperly and illegally. Though in the right, he was mulct in costs by a groundless suit, brought against him. Like every other successful party in a suit, he should then recover over his hosts expended.

But it is asked, how are we to divide a joint plea, joint subpoena, &c. ? The answer is plain. Whether the plea be joint or several, the party is liable for each to his attorney, and he may recover over to the extent of his own liability and no more.

Again, it may be asked, if there had been several defendants acquitted, could each recover over for the same joint plea, &c., and filed by the same lawyer ? The answer is equally plain. They could by no means do so. Several defendants would, in such case, be liable to their own lawyer, only for one plea, &c., and many defendants, who had been acquitted, could recover over no more than any one defendant might, who had been solely acquitted. The motion is, therefore, discharged.

Coicock, Nott, Johnson and HugeR, JJ., concurred.

See 4 MoC. 158 ; 1 Bail. 189. 
      
       5 Stat. 153.
     