Smith v. Boynton , 44 N.H. 529 ( 1860 )

Bartlett, J.

It is said that at common law there were no costs (State v. Kinne, 41 N. H. 240), but it seems to have been the general practice in this State to allow costs to the prevailing party prior to any express legislative enactment. Barron v. Ashley, 4 N. H. 281. No statute is cited by the plaintiff as specially applicable to the present case, but he claims costs under the first section of chapter 191 of the Revised Statutes, which provides that “ costs shall follow the event of every action or petition, unless otherwise directed by law or by the court.”

The seventh section of the same chapter provides that, “ in all actions or petitions pending in the superior court or court of common pleas in the county where the judgment was rendered, the said courts may, on motion and on good cause shown, limit and allow such costs, and order such security for costs as they may deem just and reasonable.” The construction of the clause “in the county where the judgment was rendered” has given rise to some question (Senter v. Carr, 15 N. H. 375), and it has been suggested that it was never made a part of this section by the legislature, but that, being intended for the seventh section of chapter 192, it was, by a subsequent clerical mistake, also inserted in the seventh section of chapter 191, and that some evidence of this is to be found in the original records. But whether such was the fact is not material here, for this section 7 is in part a revision of the first section of the act of June 29, 1819, which provided “ that the justices of the several courts of common pleas and of the superior courts of judicature, in all actions triable before them, be authorized to limit and allow such bills of costs as law and justice shall require.” Laws 1824, p. 99; Laws 1830, p. 324; Curtis v. Baldwin, 42 N. H. 401.

The act of 1819 was held to confer a discretionary power upon the court as to the limitation of costs in all actions where the statutes had not specially made other provision ; Dennison v. Perkins, 3 N. H. 313; Barron v. Ashley, 4 N. H. 282; Woodbury v. Parshley, 10 N. H. 393 ; Meacham v. Jones, 10 N. H. 129 ; Molineux v. Eastman, 14 N. H. 508; and the provision in the Revised Statutes has been similarly construed. Bean v. Brackett, 35 N. H. 90, 91.

It has been suggested that the statute by implication requires that the court shall allow some costs, but we do not so understand its terms ; and as there is no restriction placed upon the extent to which the court may limit the costs, we can see no practical advantage in allowing a merely nominal amount of costs to be allowed, such as would lead us to suppose that any such intention of the legislature is implied in an enactment that does not in terms contain it.

There is no statute expressly requiring costs- to be allowed to the plaintiff in a case like the present, and we think their allowance to him was within the discretion of the court. Were it to be held that a motion was necessary as a foundation for an order like that in the present case, even then we could not presume that no motion was made, or that good cause was not shown. Perhaps, where judgment has been ordered upon a verdict, it would not be difficult to presume that a motion for judgment was made by the party in whose favor it was rendered, and possibly it might be found that a motion for judgment included a motion for the allowance of costs. But these questions do not arise here. The order in the present •case is a somewhat unusual one, but as the question of the propriety of the exercise of the discretion of the court has not been reserved for our consideration, the exceptions

Must be overruled.