Majority
p. 238Low against Vrooman
Headnote
_ Where an . canse”was rerenToftbeparland in^ques¡twalKthft cradm^n/th" cause,” who pense? afíendwas^ntitkdto the°JExpenses' pSe*^1 some evidencl of an agreement that they should be and such ex-Sg’admissibfe of the coats^n *Where costs upon taxation !truckPou{ of the bill, die re. medy of the party is by op* Station1,m and againlt the op-which were rejected.
IN ERROR, on certiorari to a justice’s court.
This was an action of assumpsit for money paid, laid out and expended, brought by the defendant in error against the P^o^ff in error. It appeared that there had been an ac-^on °f ejectment pending in this court between the parties, w^ch> by consent, was referred to surveyors, it being a mere question of boundary. On the survey, one Tenax attended as a chainbearer, who sued the plaintiff below for bis services, and recovered between eight and nine dollars, f°r the one half of which this action was brought against the defendant below. The expenses were proved to have been necessarJ and proper, and that the plaintiff below having succeeded in the ejectment suit, the costs were taxed, but J 7 . these expenses were struck out of the bill by the taxing officer, and the bill was paid by the defendant below. There was no positive proof that the survey was to be made at the joint expense of the parties, and Tenax swore that he considered the plaintiff below as his employer. One of the referees testified that he inferred from the acts of the parties on ^le survey, that each was to bear an equal share of the expenses, but he did not recollect to have heard from either 1 . any explicit declaration on the subject; that on the survey the referees were boarded part of the time by the plaintiff, and part by the defendant. The justice gave judgment for the plaintiff below.
. The reference to the surveyors was by mutual consent of the parties, and the costs attending the
p. 239
survey were not such as could be taxed in the bill of costs, without some special agreement on the subject. The evidence on the question, whether the expenses were to be borne mutually by the parties, is rather doubtful, but such a conclusion may very fairly be drawn from the circumstances given in evidence, and it was so understood by one of the surveyors. It was an expense incurred for the mutual benefit of both, and it is just and equitable that each one should bear his proportion. Had this been a charge which might have been taxed against the losing party, and which v had been struck out of the hill of costs improperly, the remedy ought to have been by appeal from the taxation; but not being such a charge, there is no remedy, except by action. We cannot see that any principle of law has been violated, and the real and substantial justice of the case being in support of the judgment, it must be affirmed.
Judgment affirmed.[1]
(a) (a) If no directions are given respecting the costs of an award, they are to be paid by both parties equally. Grove v. Cox, 1 Taunt. 165.