Currier v. Grafton

28 N.H. 73 | Superior Court of New Hampshire | 1853

Bell, J.

It is contended here that the general rule as to-costs, prescribed by the Revised Statutes, ch. 191, § 1, does-not apply in this case. By that section, it is provided that-st costs shall follow the event of every action or petition, unless otherwise directed by law or by the court.” It is said a different rule is prescribed in cases like the present, and this provision, therefore, has no application. By section 9 of chapter 52, it is provided that the costs of laying out and of widening and straightening highways from town to town, or through land not in any town, shall be paid by the county.” The towns, in these cases, are not charged with costs, if the road is laid out. The rule that costs follow the event is superseded by a different rule, applying in one contingency, and that rule, therefore, ought not to be applied in the other. But the court are of the opinion that the rule prescribed by chapter 52 does not apply, except where the road is laid out, and that the general rule applies in cases where the application is refused, which is the present case, and, therefore, that the towns are entitled to costs against the petitioners. It is just that the towns should recover the costs to which they have been subjected by an application which has been decided by the proper tribunal to be groundless. It is not suggested that the county is chargeable in that case, nor do we perceive any thing in the statutes which would give countenance to that idea. It would leave the county chest quite too widely open, if the county were bound to pay the costs of every such petition, whether well or ill founded, and whatever the result might be.

The petitioners, then, being responsible for the costs of the towns, the question remains whether they are entitled to one bill of costs alone or to several bills ; and the court are of opinion that they are each entitled to their several costs. The two towns are, in no proper sense, joint defendants. The interests of the towns involved in the proceeding are, in their nature, entirely distinct, and their defences are usually dissimilar. The rule adopted by the court, in cases of several defences and pleadings, in actions of trespass against several defendants, as laid down in Crosby v. Lovejoy, 6 N. H. Rep. 458 seems reasonable and proper in this case. Each town is entitled to travel, attendance and attorney’s fees, but the other charges must be single, and distributed among them according to the advances made by each, or the whole, by consent of the parties, may be put into one of the bills of costs. Judgment is to be awarded against the petitioners, in favor of each of the towns, for their respective costs.