George Blake versus Henry Dennie, Administrator, 15 Pick. 385

Shaw C. J. delivered the opinion of the Court. The defendant having struck out the whole of the amount allowed by the commissioners, as by statute he had power to do, the plaintiff was compelled to commence his action at law, or lose his whole claim. The costs claimed, are the costs incurred in the prosecution of this suit, after the claim was struck out by the defendant. In this action the plaintiff has prevailed, but it is contended, that the defendant has in effect prevailed in the controversy, because the plaintiff has recovered less than the commissioners allowed.

This rule, however, borrowed from the ancient practice of reviews, where, upon a review, if a plaintiff had a verdict for less than on the original trial, the judgment was for the defendant to recover back, and so he was considered the prevailing party, is not adopted as the general rule in regulating costs. In The Framingham Man. Co. v.

Barnard, 2 Pick. 534, after judgment and execution satisfied, a new trial was allowed on the defendant’s exceptions, and the defendant so far prevailed as to reduce the amount recovered by the plaintiffs ; still the plaintiffs recovered their costs, because they prevailed in the action This case is quite distinguishable from Dodge v. Breed, 13 Mass. R. 537, because there the plaintiff gave notice and brought his action, and recovered no more than the commissioners had allowed.

It is also distinguishable from Healy v Root, 11 Pick. 394, which was decided upon the principle, that it was not an action commenced originally against the administrator, but against the intestate, and the administrator was summoned in under the statute. We are of opinion, that the plaintiff is to be considered the prevailing party, and entitled to his costs ; and that judgment is to be rendered against the administrator de bonis propriis, for the costs, and the sum recovered as damages to be certified to the judge of probate. This subject is now regulated by the Revised Statutes.

The prosecution in a common law court, is in form and effect an appeal from the decision of the commissioners, and costs will be taxed for the prevailing party on the appeal. Revised Stat. c. 68, § 12.