
    William J. Mathers vs. Charles C. Cobb & another.
    Joint defendants who prevail in an action of contract, without severing in their defence, are entitled to but one bill of costs.
    Contract on a recognizance, brought originally before a justice of the peace, where the defendants orally pleaded the general issue; and transferred by appeal into the superior court, where the action was dismissed for want of jurisdiction in the magistrate. The several defendants claimed several bills of cost, which were taxed by the clerk, and affirmed on appeal in the superior court, and the plaintiff appealed to this court.
    
      E. M. Bigelow, for the plaintiff.
    
      J. P. Converse, for the defendants.
   Dewey, J.

This case raises only a question upon the taxa tian of costs. The plaintiff might have appealed from the judgment of the court dismissing the action for want of jurisdiction, and such appeal would have opened the question whether the action was properly dismissed. But from the course of proceedings in the case, the plaintiff is precluded from that inquiry. He was heard upon the taxation of costs before the clerk, and being dissatisfied with the result there, appealed to the superior court, in which the action was pending, for a revision thereof; and, the clerk’s taxation being there affirmed, he thereupon appealed to this court.

The question raised is as to the rule of taxation of costs in actions of contract, where the plaintiff fails to maintain his action, and there is more than one defendant. It is conceded that prior to St. 1852, c. 312, the general rule in actions of contract was to tax but a single bill of costs. That statute has made no change affecting the present case. This defence was a joint one, applicable to all the defendants. There should have been but a single taxation of costs.  