Prescott v. Bartlett

43 N.H. 298

• Court: Supreme Court of New Hampshire
• Decided: December 15, 1861
• Status: Published

Opinion

Bartlett, J.

“ Several pleading does not conclusively entitle the parties to several costs.” Ticknor v. Harris, 15 N. H. 108. In Crosby v. Lovejoy, 6 N. H. 458, it did not appear that the defenses depended upon the same question of fact; and so in Currier v. Enfield, 28 N. H. 74, where separate bills of costs were allowed, the court remarking that upon petitions for highways the interests and defenses of the several towns were ordinarily dissimilar. The latter case is not necessarily inconsistent with Hanson v. Ossipee, 20 N. H. 524, which states, as the general rule, that but one bill of costs is allowed to the prevailing party, for it may have appeared affirmatively there that the defenses were identical. In actions of contract, several pleading does not entitle the defendants to several costs, where their defense is common. Meagher v. Bachelder, 6 Mass. 444; Ward v. Johnson, 13 Mass. 48; Bank v. Wood, 11 Vt. 194; and in the former case the reason is said to be that they can not properly sever. The pleas there were probably defective in form, but we do not understand that there is any such general rule, as there suggested, to create a distinction in this respect between actions of tort and of contract. 1 Chit. Pl. 566; 3 Chit. Pl. 908; Stephen’s Pl. 257; 1 Lill. Ent. 106; Com. Dig. Pl. E 35; 2 Saund. Pl. & Ev. 724; 1 Saund. 207, a and 336, notes; Moravia v. Hunt, 2 M. & S. 444. We see no reason why the rule in actions of contract, that where several defendants prevail, the same facts furnishing the same defense to each, they should ordinarily be entitled to but one bill of costs, should not equally apply in tort. In Massachusetts a different rule is said to have been established by practice; Fales v. Glove, 9 Met. 318; Davis v. Hastings, 8 Cush. 314; Mason v. Waite, 1 Pick. 458; West v. Brock, 3 Pick. 303; but there seems to have been exceptions to the general rule; Peabody v. Minot, 24 Pick. 334; Miller v. Lincoln, 6 Gray 557; and some of the early reported cases seem not unlike Crosby v. Lovejoy. The reason given in Mason v. Waite, that the prevailing party is entitled to costs, is inconclusive upon this point, as it applies equally to all actions. We do not deem it necessary to examine the various rules in other jurisdictions, as we understand the practice in this State to have been generally in conformity with the views we have expressed. We think there is no substantial difference in effect whether two join in one plea or plead the same defense severally, and in the mere fact of the joinder or severance, under such.circumstances, we see no sufficient reason for the disallowance of several costs in the one case, and their allowance in the other. Such a rule does not commend itself to our judgment, either for its equity or its practical expediency. _ We are, therefore, of opinion that where several defendants prevail, by the proof or disproof of substantially the same facts, the mere circumstance that they have pleaded severally will not entitle them as of course to more than one bill of costs. In other cases we have held that the form of the pleadings was not always conclusive upon the question of costs. Morrill v. Foster, 36 N. H. 58; Batchelder v. Green, 38 N. H. 266. We apprehend no more difficulty in the practical application of this rule than of those relating to several issues, or the same witnesses summoned in several actions. Meacham v. Jones, 10 N. H. 126; Bliss v. Brainard, 42 N. H. 255. Whether these views would be applicable where parties are manifestly joined as defendants, without reason, or in similar cases, we need not decide. Ticknor v. Harris, 15 N. H. 108. As the question we have considered is one of not uncommon occurrence, we have chosen to examine it without inquiring whether by section 7, chapter 191, of the Revised Statutes, the matter was not wholly within the discretion of the court at the trial; Meacham v. Jones, 10 N. H. 129; for if it was, of course we should have arrived at the same result. The exceptions must be overruled.