other way, their interests are so identified, that |tions litigated were decided against him. Held, the success of the defense, as to each, depends that he was not entitled to costs, although the upon the success as to all. The general issue in plaintiff turned out the property to the levying such action is regarded as several, although in officer. form joint. No more attorney fees are taxable than there are distinct trials. Downer v. Flint, 28 Vt. 527. Hale v. Merrill, 27 Vt. 738. Pratt v. Jones, 25 Vt. 303. 53. On the dismissal of a petition to set aside a justice's judgment, rendered by default without notice (G. S. c. 38, s. 7), the court in 44. Costs on appeal and review. Con- its discretion refused costs-the statute being struction of statutes regulating costs in cases silent as to costs. Held correct. Tyler v. Frost, appealed or reviewed. Parsons v. Young, 248 Vt. 486. Vt. 434. Robinson v. Whitcher, 2 Vt. 563. Plumley v. Marsh, 15 Vt. 306. 54. Costs of witnesses before commissioners, appointed on petition that a railroad company 45. Both parties appealed from the judg- be required to establish a depot, were allowed ment of a justice. The defendant, without ten- to the company, which prevailed, distinguishdering payment of the judgment, or a confes-ing this from cases for the laying out of highsion, entered his appeal in the county court, ways. Bliss v. Conn. & Pass, R. R. Co., 47 Vt. and the case was there litigated to judgment for 715. the plaintiff. Held, that the plaintiff's costs 55. In order for the court to pass upon a should be taxed the same as if he had not ap-disputed question of costs before auditors, repealed. Hill v. Powers, 16 Vt. 516. ferees or commissioners, the costs should be 46. In an action for assault and battery, the taxed by them, and their report should state plaintiff at Sept. term, 1840, recovered judgment the facts involved, material to a proper decision for $15, damages. The defendant reviewed, Ib. and at the next term the plaintiff recovered 56. What is taxable. The act of 1807, judgment for $6.50 damages. Held, that the allowing as costs a fee of two dollars for each plaintiff's costs were limited to the amount of term of court, applies to cases pending, and redamages last recovered. Plumley v. Marsh, lates back to terms of court before the act was 15 Vt. 306. passed. Pearl v. Harrington, Brayt. 47. 47. Appeal from probate court. Where 57. An attorney fee is not taxable upon a an administrator appealed from an allowance hearing before referees. Baker v. Blodget, 1 against him on settlement of his account in the Vt. 141. probate court, and succeeded in reducing that balance, the court refused costs to each party. Phelps v. Slade, 10 Vt. 192. 58. Whenever an action is tried, though not decided,-as, where the jury do not agree, or the case in the supreme court is heard and con48. The allowance of costs being discretion- tinued for judgment, or for further argument,ary on appeals from the probate court, none a jury fee is taxable in the former case, and a were allowed to either party on an appeal from full judgment fee in the latter; and a full atthe allowance of an administrator's account, torney fee in each. Walker v. Sargeant, 13 where he successfully resisted a large claim Vt. 352. Pollard v. Wheelock, 20 Vt. 370. made by the appellants, but was made charge- 59. No party in any court in this State is to able with about twenty five dollars more than tax for travel beyond the limits of the State. was found in his hands by the probate court. Mattoon v. Mattoon, 22 Vt. 450. (1850.) Reynolds v. McGregor, 16 Vt. 191. 49. The general rule that the party prevailing recovers taxable costs, was held to apply to the case of an appeal, by an executor, from a decree of the probate court disallowing a will, which was established in the county court, and that judgment affirmed in the supreme court. Brigham v. Executors, 15 Vt. 788. 60. A party testifying cannot tax fees as a witness, either for himself, or for another party joined with him. Hale v. Merrill, 27 Vt. 738. 61. The statute requiring witness certificates to be signed and sworn to does not take away the power of the court to hear evidence, viva voce, concerning costs, and to allow the travel and attendance of witnesses without any certificate. Higgins v. Hayward, 5 Vt. 73. 50. Liability of executors and administrators for costs. See O'Hear v. Skeeles, 22 Vt. 152. 62. Costs are not allowed for witness51. In appeals from commissioners of es not testifying, unless it is shown affirmaclaims, costs should abide the event of the suit tively that they were summoned in good faith, and be taxed as in other civil suits, unless there and for such cause and occasion as would jusare some peculiar circumstances in the case. tify their attendance at the expense of the other Sargeant v. Sargeant, 18 Vt. 330. party. Bliss v. Conn. & Pass. R. R. Co., 47 Vt. 52. Special proceedings. On scire facias 715. to obtain a new execution under G. S. c. 47, s. 43, and seq. where the levy of the former execution had not noticed an existing mortgage, the defendant made defense and all the ques 2. In the supreme court. Where a new trial was 63. Petitions. granted on the defendant's petition and he final-| 73. Where judgment is affirmed on writ of ly recovered, costs were allowed to be taxed in error not operating as a supersedeas, execution his favor from the commencement of the origin-issues for the costs only. Herring v. Selding, 2 al action. Shaw v. Johnson, Brayt. 47.-But Aik. 12. where a new trial was granted for no fault of 74. On exceptions. the plaintiff, costs were allowed only from the commencement of the new trial. Hogg v. Wolcott, 1 Tyl. 141. Where a party pre vails in the supreme court upon the exceptions taken, he recovers his costs in that court. The court does not allow him an execution immedi 64. Mode of taxing costs on a petition for a ately therefor, but they are to be adjusted in new trial. Burr v. Palmer, 23 Vt. 244. the final taxation in the cause, by adding them 65. On the granting or refusing of writs of to his other costs, if he prevails ultimately, or certiorari, mandamus, or other like writs resting by deducting them from the costs of the other in the discretion of the court, no costs will fol- side, if his adversary ultimately prevails. Stevens low, unless specially allowed by the court. My- v. Hollister, 19 Vt. 605. ers v. Pownal, 16 Vt. 426. Sumner v. Hartland, 25 Vt. 641. 75. A case in the supreme court on exceptions is considered as a distinct matter, begin66. Discretion. The supreme court can-ning and ending in itself, so that the party not exercise a discretion as to allowing costs, prevailing there on the exceptions is entitled to upon trials had in the county court, on appeals his costs there, the same as if a writ of error from probate, or commissioners. Allen v. Rice, had been brought, and this without reference 24 Vt. 647. to the amount of damages recovered, or to the 67. Where costs depend upon the discretion final event, and although a balance may be of the court trying the cause, and that court | found against him. Pollard v. Wheelock, 20 Vt. omits to exercise its discretion in the matter, the 370. Baker v. Blodget, 1 Vt. 141. Downer v. supreme court will not exercise its discretion as Frizzle, 10 Vt. 541. Stewart v. Martin, 16 Vt. to the costs. Batchelder v. Tenney, 27 Vt. 784. 397. Bardwell v. Perry, 19 Vt. 292. McCrillis 68. Revision of taxation below. The v. Banks, 19 Vt. 442. Scott v. Lance, 21 Vt. supreme court will not reverse a judgment of 507. Downing v. Roberts, 22 Vt. 455. the county court as to costs, and then tax the 76. Where both parties except, and neither costs below; but the party excepting to the party prevails on his exceptions, costs in the disallowance of costs must set forth in his ex- supreme court will be allowed to neither. Mills ceptions the items of costs incurred and claim- v. Hyde, 19 Vt.59. Green v.Shurtliff, 19 Vt. 592. ed. Redfield, C.J., in Sumner v. Hartland, 25 Vt. 641. 77. Security for costs. The supreme court will not order security for costs to be given in a 69. Costs ought to be taxed when the judg-case standing in that court on exceptions. Liverment is rendered in the county court, so that more v. Bond, 19 Vt. 607. any question in respect thereto may be heard with the exceptions in the supreme court. Ellenwood v. Parker, 3 Vt. 65. II. IN CHANCERY. be expressly awarded, or they are lost; and if the final decree is silent as to costs, they cannot be granted on a subsequent application, unless there is a rehearing on the merits. Conable v. Bucklin, 2 Aik. 221. 70. The supreme court is unable, on peti- 78. In general. In chancery, costs must tion or appeal from the clerk, to correct errors in taxing costs which are not apparent upon the face of the taxation, unless such errors are disclosed either by proof, or by a report of the facts from the clerk. It is the better practice to require an appellant from the clerk's taxa- 79. To entitle a party to costs in chancery, tion, to procure a report from the clerk of his costs must be awarded by the decree; and on finding upon all questions of fact material to be an appeal (semble) the supreme court can make understood in passing upon the alleged error, no order as to the costs in the court of chancery. so that the court may be relieved from hearing Gladding v. Warner, 36 Vt. 54. testimony upon these minor matters. Steele, J., in Carver v. Adams, 40 Vt. 552. 80. The general rule in chancery is, that there can be no appeal or rehearing for costs 71. On writ of error. The plaintiff, having only; and the supreme court will rarely, if succeeded on his writ of error and having re-ever, reverse a decree on the question of costs covered final judgment in the action, was held alone. Mott v. Harrington, 15 Vt. 185. Lyentitled to his full costs on the writ of error, man v. Little, 15 Vt. 576. Sumner v. Hartland, irrespective of the amount of damages recover-25 Vt. 641. Sanders v. Wilson, 34 Vt. 318. ed. Baker v. Blodget, 1 Vt. 141. 22 Vt. 456. 81. No instance is found, in which the su72. Distinction taken as to allowance of preme court has disturbed a decree of the court costs in the supreme court, between exceptions of chancery on the question of costs alone. Hall, and writ of error. Barlow v. Burr, 1 Vt. 488. J., in Hastings v. Perry, 20 Vt. 272. Sanborn (Denied in Downing v. Roberts, 22 Vt. 457.) v. Kittredge, 20 Vt. 632. 82. Where the orator's bill in the court of 91. Unnecessary costs. One-third the chancery was dismissed, and on appeal that de- orator's costs of taking testimony was disalcree was reversed and an affirmative decree was lowed, for unnecessary prolixity. Sanborn v. ordered for the defendant, costs were allowed Bruley, 47 Vt. 170. to the defendant in both courts. Davis v. Smith, 43 Vt. 269. 92. Master's fees. The fees of masters in chancery, fixed in the schedule of fees, were de83. Bill to redeem. On a bill to redeem, signed only for the ordinary service of standing which was also for discovery and relief, where masters, and not as the fixed rate of compenthe orator prevailed, the court refused costs to sation to masters specially appointed for extrathe defendant. Had there been a seasonable ordinary service, or to standing masters to and proper tender, and a refusal, the orator whom a matter is specially referred requiring would have been entitled to costs. Smith v. extraordinary service. In case of such extraBailey, 10 Vt. 163. ordinary services, the master is to be allowed a 84. On a bill to redeem, the court refused reasonable compensation, irrespective of the costs to the defendant where he contested the schedule of fees, and such sum is to be treated right to redeem; and refused costs to the ora- as taxable costs,--the amount of compensation tor, because he had not actually tendered the being subject to the revision of the court. Clafamount due in equity. Smith v. Blaisdell, 17 lin v. Celley, 48 Vt. 3. Vt. 199. 31 Vt. 187. 93. Illustrative instances of taxation. 85. On a bill to redeem, where the orator Cases illustrating the discretionary action of the had made an insufficient tender, the defendant court of chancery in allowing, denying, and apwas allowed his costs, and also the costs of a portioning costs. Lynde v. Wright, 1 Aik. 383. proceeding by the defendant to get possession Mower v. Hutchinson, 9 Vt. 242. Smith v. of the premises, including the costs of a writ of possession, and for executing it. Cree v. Lord, 25 Vt. 498. Bailey, 10 Vt. 163. Beardsley v. Hatch, 11 Vt. 151. McConnell v. McConnell, 11 Vt. 290. Keeler v. Eastman, 11 Vt. 293. Waterman 86. Although the subject of costs in chan- v. Cochran, 12 Vt. 699. Ward v. Sharp, 15 cery is within the discretion of the court, yet Vt. 115. Mott v. Harrington, 15 Vt. 185. Pinthere are certain principles and rules upon the nock v. Clough, 16 Vt. 500. Barrett v. Sarsubject which confer rights that the court are geant, 18 Vt. 365. Blodgett v. Hobart, 18 Vt. bound to recognize and secure to parties. Thus, 414. Washburn v. Bank of Bellows Falls, 19 unless some reason be disclosed to the contrary. Vt. 278. Day v. Cummings, 19 Vt. 496. Hopthe prevailing party is entitled to recover his|kins v. Adams, 20 Vt. 407. Stearns v. WrisThrall v. Chittenden, 31 Vt. 183. ley, 30 Vt. 661. Soule v. Albee, 31 Vt. 142. San87. Thus, on a bill to redeem against a mort-ders v. Wilson, 34 Vt. 318. Therasson v. gagee in possession, the mortgagee shall have Hickok, 37 Vt. 454. Weston v. Cushing, 45 Vt. his costs, unless some reason be shown to the 531. contrary, even though the prayer of the bill be granted and it be found, on accounting, that the mortgage debt has been more than satisfied out of the rents and profits. To decide otherwise would be error. Ib. costs. 88. On a bill to redeem, where the right to redeem was denied, and that was the question litigated ;—Held, that the ordinary rule of putting the costs upon the orator in a bill to redeem did not apply, and the orator was allowed his costs. Hills v. Loomis, 42 Vt. 562. COUNTY COURT. ; 1. Suit in favor of the county. Under 89. -to foreclose. Where the defendant the statute authorizing the county court, or a n a bill to foreclose a mortgage proved pay-justice, to take cognizance of any suit in favor ment, except the sum of $5.57;-Held, that as of or against the county (G. S. c. 11, s. 15) ;he had so nearly established a defense, either no Held, that a qui tam action brought by a comcosts should be allowed the orator, or a very mon informer, where half the penalty went to small proportion, not exceeding the amount of the county, was triable by the court and jury the debt-he having put the defendant to the of the county, though they were liable as county proof of payment. Killam v. Jenkins, 25 Vt. tax-payers. Colgate v. Hill, 20 Vt. 56. 643. 2. Original jurisdiction, as determined 90. After the time of redemption had ex- by the "matter in demand." An action pired upon a decree of foreclosure rendered pro confesso, the court refused a decree that the defendant pay the costs. Binney v. Wetherbee, 10 Vt. 322. was brought to the county court for the recovery of a certain number of fixed penalties exceeding, in the whole, a justice's jurisdiction, but evidence was given tending to prove only so many as would bring the case within the ju- his principal and a co-surety jointly, to recover risdiction of a justice. Held, that the county for money paid by reason of his suretyship, the court should have dismissed the case for want case was, that his claim against the principal of jurisdiction. Putney v. Bellows, 8 Vt. 272. exceeded in amount a justice's jurisdiction, 3. In cases where the jurisdiction depends whereas his claim against the co-surety for conupon "the matter in demand," although on the tribution was within a justice's jurisdiction. face of the writ the county court has jurisdic- The court, under the statute, discharged the tion, yet if, upon the plaintiff's own evidence, it principal and rendered judgment against the appears that his claim is not, as to amount, co-surety for less than $100. Held, that the within the jurisdiction, the suit will be dis- judgment was regular-that as the plaintiff was missed as where, in debt or assumpsit, ac- entitled to recover of the principal more than knowledged payments before suit brought have $100, this gave the county court original jurisreduced the demand below the court's jurisdic-diction of the case; and this was not lost by tion. Southwick v. Merrill. 3 Vt. 320. Miller discharging him, rather than the other defendv. Livingston, 37 Vt. 467; and see Stevens v. ant. Powers v. Thayer, 30 Vt. 361. Howe, 6 Vt. 572. Bank of Rutland v. Cramp- 10. Uncertain damages-Plaintiff's good ton, 28 Vt. 330. Scott v. McDonough, 39 Vt. faith. In an action sounding in damages mere203. ly, and where the ad damnum brings the case 4. Joining several demands. Notwith- within the jurisdiction of the county court, alstanding the statute taking away the concurrent though the evidence may not, it is always a jurisdiction of justices of the peace and the matter of discretion whether the court will discounty court, the county court has jurisdiction miss the action; and they should not do this of an action embracing several demands, al- after a reference and report; and should never though one, or each of them, is within the ju- do it in a case admitting of doubt, even in the risdiction of a justice, if all combined exceed mind of the plaintiff. Learned v. Bellows, 8 his jurisdiction. Keyes v. Weed, 1 D. Chip. 379. Vt. 79. Ladd v. Hill, 4 Vt. 164. McFarland v. McLaughlin, 2 D. Chip. 90. 8 Vt. 274. Cook v. Porter, 1 Tyl. 450. 11. Where the question whether the jurisdiction belongs to the county court or to a justice is doubtful, the case will not be dismissed for want of jurisdiction. Heflin v. Bell, 30 Vt. 5. Action on note. The jurisdiction of a justice upon a note is governed by what appears to be due by the whole note itself, and as the 134. clerk would make up the sum upon default. 12. In an action, as on a contract or tresThe county court is not ousted of jurisdiction pass de bonis, the value of the property furby payments not indorsed. Bank of Middle-nishes no absolute rule of decision as to the bury v. Tucker, 7 Vt. 144. original jurisdiction of the county court. In 6. Increase by interest. The interest order to justify a dismissal for want of jurisdicwhich is incident to a debt, whether it be a note tion, other facts are required to be blended with or an account, and recoverable when the suit is the question of value, showing, at least, the commenced, has the same effect in giving juris-probable consciousness of the plaintiff that he diction, as so much principal;-as, where it is was not entitled to an amount of damages bean item on the debtor side of the plaintiff's yond the power of a single magistrate to award book, in the action of book account. Nichols v. him. Where the exceptions were silent as to Packard, 16 Vt. 91. every consideration except the value of the 7. In an action against an officer for not property, and the decision dismissing the suit keeping property attached so that it could be appeared to have proceeded upon that ground levied upon, where the damages demanded and alone, the judgment was reversed. Spafford v. actually recovered, including interest on the Richardson, 13 Vt. 224. Joyal v. Barney, 20 execution, exceeded $100;-Held, that the Vt. 154. county court had jurisdiction, although the 13. The jurisdiction of the county court original judgment was less than $100. Mc- will be sustained, in a case of open damages, Ormsby v. Morris, 28 Vt. 711. although the amount recovered is less than the 8. In assumpsit for use and occupation, limit of a justice's jurisdiction, where the plainbrought in good faith, the county court has tiff when he commenced his suit had reasonable original jurisdiction, if apparent in the writ, expectation of recovering more, and brought although the largest sum due and which the his suit in the county court in good faith. Clark plaintiff could hope to recover, at the date of v. Crosby, 37 Vt. 188. Gale v. Bonyea, 1 D. the writ, was less than $100, but where at the Chip. 208. Ladd v. Hill, 4 Vt. 164. Kittridge time of trial, by accumulation of interest, the v. Rollins, 12 Vt. 541. Spafford v. Richardson, demand exceeds $100. Hall v. Wadsworth, 28 13 Vt. 224. Cooley v. Aiken, 15 Vt. 322. Waters Vt. 410. v. Langdon, 16 Vt. 570. Manwell v. Briggs, 9. Severance of defendants. In an action 17 Vt. 176. Henry v. Tilson, Ib. 479. Brainbrought in the county court by a surety against erd v. Austin, Ib. 650. Joyal v. Barney, 20 Vt. 154. Powers v. Thayer, 30 Vt. 361. Scott v. Moore, 41 Vt. 205. Hall v. Wadsworth, 28 Vt. 410. Sanborn v. Chittenden, 27 Vt. 171. the freehold, setting the ad damnum at $20 is conclusive as to the original jurisdiction of the county court. Doubleday v. Marstin, 27 Vt. 488. 14. It will make no difference on this ques- 21. The question in the supreme court. tion, whether the plaintiff's misapprehension of It seems, that where the county court has his rights was in a mistaken valuation of prop- jurisdiction of the parties and of the subject erty, or in a mistaken notion of the law deter- matter, the case will not be dismissed by the mining his claim. Brainerd v. Austin. supreme court, because the amount of the 15. In such case, if any portion of the plain- plaintiff's claim was less than that prescribed tiff's evidence tends to show damages beyond for the original jurisdiction of the county court, the jurisdiction of a justice, this should be re- unless it appear by the exceptions that such obgarded as conclusive as to the jurisdiction of jection was there taken. Powers v. Thayer, 30 the county court, irrespective of the defendant's 361. evidence. A liberal rule should be adopted to sustain the jurisdiction. Joyal v. Barney, 20 Vt. 154. Waters v. Langdon, 16 Vt. 570. Ladd v. Hill, 4 Vt. 164. II. APPELLATE JURISDICTION. 22. If a justice of the peace has no jurisdic16. Where upon the writ the county court tion of the cause, the county court on appeal has jurisdiction, but the case is one of open has none, and whenever, at any stage of the damages, or depends upon an estimate, or ap- proceedings, the defect is discovered, the suit praisal, or valuation of property, a motion to must be dismissed. Richardson v. Denison, 1. dismiss for want of jurisdiction is addressed to Aik. 210. the discretion of the county court; and the de- 23. A new declaration, filed in the county cision of that court upon that question cannot court on appeal, is but an amplification of the be reviewed in the supreme court. Clark v. one before the justice. It cannot give a jurisCrosby, 37 Vt. 188. Ladd v. Hill, 4 Vt. 164. diction which did not before exist; nor should Morrison v. Moore, Ib. 264. it be construed to take away one which be17. The decision of the county court sus-fore did exist. Perkins v. Rich, 12 Vt. 595. taining the jurisdiction was held conclusive, Thompson v. Colony, 6 Vt. 91. although none of the plaintiff's evidence set the damage as above a justice's jurisdiction. McGray v. Wheeler, 18 Vt. 502. 18. In a like case, the county court dismissed the action, and the decision was held conclusive. Kittridge v. Rollins, 12 Vt. 541. Collamer, J., dissenting. (In Cooley v. Aiken, 15 Vt. 322, Williams, C. J., says he was opposed to this decision.) See JURISDICTION. I. II. COVENANTS. ACTION IN GENERAL. 2. For quiet enjoyment I. ACTION IN GENERAL. 19. In an action of assumpsit in the common counts only, brought returnable to the county court, the plaintiff's specification was, "To balance of money paid out and services buying butter [for defendant], $225." After the plaintiff had put in his evidence and rested and the defendant had commenced putting in his evidence, the defendant discovered an error in one of the bills of butter, which had been in 1. Kind of contract. In an indenture, his own possession, by which said balance was each covenant is to be considered as only the reduced to $125. This error was unknown to covenant of the party who is to perform it, both parties until then, and the suit was brought and as his language, and not that of the other in good faith to the county court, the plaintiff party. The signature of the other party only supposing that more than $200 was due him, indicates his acceptance of the covenant in the and his original book, put in the case, showing terms in which it.is made. Olcott v. Dunklee, a balance of about $300. On the defendant's 16 Vt. 478. motion to dismiss the action for want of juris- 2. An action of covenant will not lie upon diction, the county court refused. Held cor- an agreement by a lessee to pay rent, contained rect. By Prout, J.: The matter in demand in a lease by deed poll not signed and sealed by and in controversy was the amount of the plain- the lessee, although the lessee accepted the tiff's claim, as unaffected by unintentional lease and held and occupied under it. Johnson errors not known or discovered when the action v. Muzzy, 45 Vt. 419. Peck, J., dissenting. was commenced. Scott v. Moore, 41 Vt. 205. 3. Where the time for the performance of a 20. Trespass on freehold, In trespass on sealed contract is extended by parol, an action |