Stat. 1786, c. 52, sec. 3.

On report of referees.

5. When judgment shall be rendered upon the report of referees, full cost shall be taxed for the party recoverNelson v. Andrews. ing, unless a different adjudication respecting the costs shall be made from the report itself: but where referees award concerning the costs of a suit, the judgment must conform to their award.

2 Mas. Rep. 164.

Stat. 1784, c. 10, sec. 2.

bail.

6. If a plaintiff take out scire facias against the bail, and before judgment thereon, the principal be surrenderOn scire facias against ed in court, the bail must nevertheless pay the costs of the scire facias. And this he must do whether the scire facias were issued from a court of record, or from a justice of the peace. But where the bail are discharged, without surrendering the principal, no costs are given to the plaintiff on the scire facias.

Ibid. 1803, c. 133, sec. 2.

By the court, in Champion v. Noyes.

2 Mas. Rep. 488.

Stat. 1786, c. 52, sec.2.

In trespass quare clausum fregit.

7. By statute it is enacted, that in all actions of trespass, quare clausum fregit, wherein the defendant shall, in his plea, disclaim all right, title and interest to the land in which the trespass is by the declaration supposed to be done, and the trespass be by negligence, or involuntary, the defendant shall be admitted to plead a disclaimer, and that the trespass was done by negligence, or involuntary, and a tender or offer of sufficient amends for such trespass before the action brought, or the defendant may have leave to bring money into court to satisfy the damage the plaintiff has sustained; and in case the jury shall not assess larger damages for the trespass than the money tendered, or brought into court, the defendant shall recover of the plaintiff his reasonable costs.

But where, in ejectment, the defendants pleaded a disInhabitants of Wells claimer of a part of the land, and not guilty as to the resi

v. Osborn, & al.

2 Más. Rep. 446.

Where, in ejectment, the defendant disclaimed.

Lincoln v. Goulding. 3 Mas. Rep. 234.

due, and issue was joined on both pleas, and the jury returned their verdict for the defendant on the issue of not guilty, and, as to the part disclaimed, that the defendants were in possession of the same at the commencement of the action; the plaintiff recovered his full costs.

8. Where upon a review the former judgment is not reversed in whole, the court has no jurisdiction of

the costs of the first trial, but if the judgment on such review be only partially reversed, yet shall the prevailing party in the review be entitled to full costs of review.

In review.

Stat. 1784, c. 41, sec. 4.

In debt against a

9. If any person who stands committed for debt, shall escape from prison, and the sheriff, the jailer or prisonkeeper shall, within three months next after such escape, sheriff for an escape. recover the prisoner so escaped, and return him back to prison again, then the sheriff shall be liable to nothing further than the cost of any action that may have been commenced against him for such escape.

Stat. 1794, c. 65, sec. 3,

In the case of a trus

first term.

10. If any supposed trustee shall come into court the first term, and declare that he had not in his hands or possession, at the time the writ was served on him, any tee who appears the goods, effects or credits of the principal, and shall thereupon submit himself to an examination upon oath, and if upon such examination the said declaration shall appear to the court to be true, the court shall award him his legal costs, and issue execution therefor; and if such trustee shall, at the time of the service of such writ, dwell in any county other than that in which said writ is returnable, the court shall allow him such further costs, as with his legal costs, shall, under all the circumstances of the case, be a reasonable compensation to him for his time and expenses, in appearing and defending himself against

such suit.

Ibid.

In the case of a trus

pear the first term,

But every person resident in the county where such writ shall be duly returned, who, being summoned, shall neglect to appear at the return thereof, and submit to an tee who does not apexamination, as to the supposed goods, effects, or credits, in his or her hands, and having no reasonable cause to the contrary, in the opinion of the court where the suit shall be, shall be liable for all costs, afterwards arising in such suit, to be recovered and paid out of his own goods and estate, in case judgment shall be finally rendered for the plaintiff, and unless such costs shall be duly recovered

t

Ibid.

Where there are seve

ral trustees who dwell

against the goods, effects, or credits of the principal in the hands of a trustee.

And if several persons resident in such county, being duly summoned, shall neglect to appear, then judgment and execution against them jointly, shall be awarded for the suit is brought. such costs; but persons resident in other counties than In the case of a trus. where the writ is returnable, shall not be liable for any costs arising on the original process.

in the county where

tee who does not dwell

in such county.

Ibid. sec. 6.

In the case of a trus tee who does not ap pear until the return of the scire facias.

Ibid. s. 4.

Where the plaintiff does not support his

action against the

principal in a trustee

process.

Stat. 1786, c. 58, s. 3.

Ibid. 1783, c. 46, s. 4.

Costs in the supreme court of probate.

Hart v. Fitzgerald, 2 Mas. Rep. 509.

11. A trustee who does not appear until the return of the scire facias, and at that time is discharged, if he was resident within the county at the time of the return of the original process, he must, in such case, pay costs; but if, at the time of the return of the original process, he resided in another county, in such case he shall receive

costs.

12. Where the plaintiff does not support his action against the principal, and judgment shall be rendered, that he take nothing by his writ, the court shall award costs against him, as well in favour of the principal, as in favour of such persons summoned as trustees severally, who have personally appeared in court and submitted themselves to an examination, upon oath; and several executions shall issue thereupon accordingly.

13. In a writ de homine replegiando, the prevailing party is entitled to his reasonable costs.

14. The supreme court of probate may assess reasonable costs in all cases that may be brought before them, by way of appeal from the respective judges of probate ; and in case the appellee or appellees shall neglect or refuse to pay the costs that may be so assessed against him or them, the appellant may bring an action of debt therefor, or prosecute the bonds given for appealing.

15. When judgment is arrested for the insufficiency of the plaintiff's declaration, the defendant shall recover costs; for as costs are always given to the defendant when judgment is given for him on his demurrer to the plaintiff's deWhere judgment is claration, he ought for the same reason to have costs, if

arrested.

the judgment be arrested for a substantial defect in the declaration.

Stat. 1791, c. 13, s. 1,

16. In an inquest of office the prevailing party is entitled to full costs; and if in such case the defendant recovers 3..... 1798, c. 43,s. 3. costs, the same shall be paid out of the public treasury by

warrant of the governor and council.

II. In what cases a party is not entitled to full costs.

1. Where a plaintiff shall, at the same court, bring divers

actions upon demands which might have been joined in one, Stat. 1784, c. 28, s. 12.

he shall recover no more costs than in one action only.

Costs wherein actions

brought originally at the plaintiff recovers

the common pleas,

less than twenty dollars damage.

2. By statute it is enacted, that no action shall be sustained March 11, 1808. in any court of common pleas, where the damage demanded does not exceed twenty dollars, unless by appeal from a justice of the peace, saving such actions wherein the title of real estate is concerned; and if upon any action originally brought before the court of common pleas, judgment shall be recovered for no more than twenty dollars, debt or damage, in all such cases the plaintiff shall be entitled, for his costs, to no more than one quarter part of the debt or damage so recovered.

By this statute the trustee process is intended, as well as See 1 Mas. Rep. 15. in other actions.

III. In what cases a party is entitled to double costs. 1. In an action against a trustee, convicted of wilfully and knowingly making false answers, on his examination, the plaintiff shall be entitled to double costs.

Denham v. Lyon.

Stat. 1794, c. 65, s. 9.

Stat. 1784, c. 28, s. 13.

And When a transitory

2. When the plaintiff, and defendant both live within the commonwealth, all personal or transitory actions shall be brought in the county where one of the parties lives. when an action shall be commenced in any other county, then, as above directed, the writ shall be abated, and the defendant allowed double costs.

action is commenced in a wrong county.

Stat. 1803, c. 155, s. 5.

3. Whenever, in any action founded on simple contract, the plaintiff shall demand more than fifty dollars, and shall not, by the judgment of the supreme judicial court, on the Where the plaintiff appeal thereof, recover a larger sum than fifty dollars, they dollars, and on

demands more than

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the appeal does not recover more than that sum, etc.

defendant shall recover his legal costs arising in such action, after the appeal thereof, unless such appeal was made by the defendant; in which case, the plaintiff shall be entitled to, and recover double costs, after the making such appeal.

IV. In what cases a party is not entitled to any costs.

1. In a prosecution on the militia acts before a justice of Stat. 1799, c. 73, s. 7. the peace, the clerk of the company may, in any stage of In prosecution on the the proceedings, before the rendition of final judgment,

militia acts.

1 Mas. Rep. 467.

view.

amend his declaration or complaint, without paying costs to the adverse party. And the clerk shall not be liable to pay the defendant costs, where he produces a certificate, signed by a majority of the commissioned officers of the company, directing him to institute the prosecution.

2. In the case of Ilsley v. Knight, which was a petition for the review of an action in which the petitioner was plainIn a petition for re- tiff; the object of the review was to have a mistake rectified which originated from the mere error of the clerk in computing the interest on the note declared on. Although the court granted the review, yet they refused the petitioner costs on the petition; for the plaintiff's attorney ought to have seen that the judgment was entered up for the sum actually due, on the note; it being a matter of computation merely.

Williams v. Blunt, 2 Mas. Rep. 207.

Howe v. Gregory, 1 Mas. Rep. 84.

Where there is a reversal for error in fact.

Knapp v. Crosby, 1 Mas. Rep. 479.

3. No costs can be given in an action of which the court has not jurisdiction; for to give costs would, in some sort, be assuming the jurisdiction.

4. Costs are not allowed on a writ of error, where the judgment is reversed for error in law.

5. But where there is a reversal for error in fact, in such case the allowance or refusal of costs will depend upon circumstances.

In this case, the error consisted in rendering judgment against an infant by default. On motion for costs, the court refused to allow them, unless it could be made to appear that the plaintiff in the original action knew the defendant to be an infant.

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