| Superior Court of New Hampshire | Jul 15, 1839
This is trespass, and the declaration contains several counts. The first is trespass quare clausum fi'egit. The others are for taking and carrying away certain hay and corn fodder. The counts are for separate causes of action, in distinct tacts of land. As to part of the close described in the first count, the defendant pleads soil and freehold, and thus justifies the acts there alleged to have been committed. This issue is joined, and upon trial found for the defendant. The general issue is pleaded to the other counts ; and upon
In the court below the defendant was allowed his costs upon the issue found for him ; and the plaintiff, having upon the other issues recovered less than five dollars damages, and upon these issues the title to real estate not being in question, he was restricted in his costs to the sum of five dollars. And the question is upon the correctness of that allowance and limitation of costs.
The rule adopted in the court below is manifestly the one demanded by the equity of the case. The plaintiff has tried several and distinct claims, and has failed in the most essential part. He ought not to be permitted to throw all the expense of this litigation upon the defendant. What justice requires is, that so far as the plaintiff has prevailed, he should recover his costs ; and so far as the defendant has succeeded, he should have the same recovery. Are we restrained by any inexorable and unquestioned rule of law from thus doing exact justice to both parties ?
The English decisions upon this point are somewhat conflicting ; and it is difficult to deduce from them any general principle, which is not subject to exceptions. Dodd vs. Joddrell, 2 T. R. 235; Brooke vs. Willett, 2 H. Black. 435; Vollum vs. Simpson, 2 Bos. & Pul. 368; Astley vs. Young, 2 Burr. 1232; Cook vs. Sayer, 2 Burr. 753; Butcher vs. Green, Dougl. 678; Kirk vs. Nowell, 1 T. R. 266; Cook vs. Green, 5 Taunt. 594; Day vs. Hanks, 3 T. R. 654; Griffith vs. Davies, 8 T. R. 466; Portan vs. Stannay, 5 East 261; Vivian vs. Blake, 11 East 263. See, also, Wright vs. Williams, 2 Wend. 632.
By a recent rule of the English courts, a plaintiff is to be allowed costs only on the issues on which he succeeds ; and the costs of all issues found for the defendant shall be deducted from the plaintiff ⅛ costs. 3 Chitty Gen. Pr. 476.
In this state, in replevin, where the plaintiff recovers as to part, and the defendant as to the residue, both parties are
The statutes of this state provide, “ that the justices of the several courts of common pleas, and of the superior court of judicature, in all actions triable before them, be authorized to limit and allow such bills of costs as law and justice shall require.” 1 Laws, 324.
The most extensive authority, to be regulated indeed by a sound discretion, is thus given the court in the allowance of costs ; an authority which we think should be exercised in cases like the present.
The plaintiff has no reason to complain, although, as suggested at the bar, a different rule of practice has hitherto prevailed in this state without having been questioned. If he has come here hoping to try a doubtful title to land, at the defendant’s risk and expense, because the defendant may have at some time committed a trifling and perhaps involuntary trespass upon some other of the plaintiff ⅛ property, he has come intending to do injustice under the forms of law, and no one can regret that he should be disappointed.
We, therefore, hold, that where the plaintiff includes several and distinct trespasses in several counts of the same declaration, and prevails as to part, while the defendant succeeds as to the residue, each party shall be allowed the costs of the matter found for him.