
    Charles B. Davis vs. Benjamin Hastings, Jr., & others.
    Several defendants, in an action of replevin, who plead severally, and severally move to dismiss the action for want of jurisdiction, are entitled, on the dismissal of the action, to several costs.
    This was an action of replevin for six cows, commenced in the court of common pleas. The defendants severally pleaded the general issue, and specified their several defences as follows : Benjamin Hastings, Jr., that he as field driver lawfully distrained the cows going at large in the highway not under the care of a keeper; two of the other defendants, that they acted as servants of the field driver in so distraining the cows; and the fourth defendant, that he as pound-keeper re< ceived the cows so distrained of the field driver and impounded them in the town-pound under his charge. The defendants at a subsequent term severally moved to dismiss the action on the ground that the court of common pleas had not jurisdiction of an action of replevin for cattle distrained, and for their costs. The plaintiff admitted that the action was replevin of cattle distrained, and the court thereupon dismissed the action with several costs for each of the defendants. From this judgment the plaintiff appealed.
    
      B. F. Butler, for the plaintiff.
    No costs were allowed to defendants in actions dismissed or want of jurisdiction until they were allowed in cases where a plea was necessary to ascertain jurisdiction. Cary v. Daniels, 5 Met. 236; Turner v. Blodgett, 5 Met. 240, note; Jordan v. Dennis, 7 Met. 590. Several costs are allowed to defendants in cases of tort only where they plead severally, and upon the ground that there are trials of several issues of fact. Mason v. Waite, 1 Pick 452; Meagher v. Batchelder, 6 Mass. 444; Ward v. Johnson, 13 Mass. 152. This practice is according to the provisions of St. 8 & 9 Wm. 3, c. 11. And replevin does not come within that statute. Ingle v. Wordsworth, 3 Bur. 1284.
    Where the defendants’ several pleas have no effect on the trial, single costs only are allowed. Peabody v. Minot, 24 Pick. 329, 334. Where two defendants each move for a non-suit, but one bill of costs will be allowed. Trowbridge v. Sharp, 4 Hill, 38.
    
      J. S. Keyes, for the defendants.
   Shaw, C. J.

It is now settled, though formerly it was considered otherwise, that where an action is dismissed on motion for want of jurisdiction, the defendant is entitled to costs. Cary v. Daniels, 5 Met. 236; Jordan v. Dennis, 7 Met. 590; Hunt v. Hanover, 8 Met. 343. The only question in the present case is, whether the defendants having pleaded severally are entitled to several costs; and we think they are, having pleaded and moved severally. Mason v. Waite, 1 Pick. 456; Ewer v. Beard, 3 Pick. 64; West v. Brock, 3 Pick. 303 ; Fales v. Stone 9 Met. 316.

In taxing several costs for the defendants, however, it will be understood, that expenses incurred for the use of all, as depositions and the like, for the common benefit, can be taxed against the plaintiff but once only.  