Fitch v. Stevens

43 Mass. 506

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1841
• Status: Published

Opinion

Shaw, C. J.

On a complaint for flowing, two verdicts had been set aside ; the first for an irregularity in the verdict; the second for an irregularity in empannelling the sheriff’s jury ; and ultimately the complainants, upon an unexceptionable verdict, obtained judgment for the amount of the verdict and costs. The defendants objected to the allowance of any costs of the first two- trials before the sheriff’s jury, and the objection was overruled by the court of common pleas, and the costs allowed; and, on exceptions, the question is now brought before this court.

We are of opinion, that the decision of the court of common pleas was right. By Rev. Sts. c. 116, § 31, the party prevailing, in every suit under that chapter, which includes complaints for flowing, shall be entitled to full costs, unless where it is oth erwise expressly provided. The court had jurisdiction of the cause ; the costs were necessarily incurred in the prosecution of the cause, and came within the express provision of the statute. We cannot perceive how it differs from the ordinary case of a verdict set aside and a new trial granted, for some error or irregularity attending the former trial; in which case, general costs are allowed to the party ultimately prevailing, unless otherwise specially ordered. Were it a question of discretion, and so competent for us to inquire into the particular circumstances of the case, we do not perceive that the irregularity, in either of the first two trials before the sheriff, was imputable to the complainants.

Exceptions overruled.

L. Church, of Connecticut, fy Sumner, for the respondent.

Wells, for the complainants.