The opinion of the court was pronounced by Mattocks, J. — We do not think it advisable to adopt the English practice of taxing cost both ways, where some of the issues are so found. The practice here has been otherwise, and it would be likely to occasion some troublesome contention whether the counts were for different causes of action, or whether they were synonymous. And although sometimes plaintiff joins a forlorn claim with a just one, yet the defendant can generally obviate this difficulty by a tender or bringing the money into court.
But in this case, as the defendant tendered the plaintiff judgment for all that was due, let the plaintiff take all his cost as of a judgment, but no cost for the trial by jury.