Essex County Railroad v. Town of Lunenburgh ( 1877 )

By the Court.

The defendant’s costs were incurred in its defence to a petition for a writ of mandamus, brought against it by the Essex County Railroad Company, to compel it to issue bonds, which the petitioner claimed the defendant town was bound to issue by reason of certain action on its part under the Bonding Act of 1867.

In answer to this petition it was competent for the town to show anything in defence that would excuse it from issuing such bonds. The fact that the court heard the case upon some one of the various grounds suggested, is not conclusive of defendant’s right to costs upon other grounds of defence in good faith relied upon, but which were not noticed or deemed material by the court in the view taken of the case. The clerk therefore erred in disallowing all items except the four specified.

The defendant is entitled to all the items claimed, except solicitor’s fees before magistrate and item of $4.75 for answer.

Taxation of the clerk overruled; costs allowed to defendant as claimed before clerk, except solicitor’s fees before magistrate taking depositions, and item claimed for answer. Defendant to recover costs in this court.