
    The Inhabitants of Billerica, Plaintiffs in Review, versus The Inhabitants of Carlisle.
    When, on a review by the defendant, the former judgment is reversed in part as to the damages, the costs of the original action are not affected.
    In the former action, the inhabitants of Carlisle were plaintiffs, and recovered judgment, on a verdict, for 16 dollars 11 cents damage, and 106 dollars 75 cents costs of suit. The inhabitants of Billerica paid the amount of the judgment, and brought their writ of review. Upon the trial of the review, the former plaintiffs recovered only 10 dollars 11 cents damage; and the counsel for the plaintiffs in review insisted that, within the equity of the statute which provides that, in all actions where the title to real estate does not come in question, a plaintiff recovering less than 4 pounds debt or damage shall be entitled to only one fourth part so much cost as the debt or damage, the present defendants in review should refund the costs of the former action, except the fourth part of 10 dollars 11 cents, the amount of damage as settled by the last verdict.
    The counsel on the other side opposed this, and contended that the former judgment was to be reversed partially as to the damage, and not at all as to the costs.
   By the Court.

The statute granting this writ of review, from which our whole authority in this case is derived, expressly provides that, where an original defendant reviews an action wherein judgment has been rendered against him, if he shall obtain a reversal of such judgment in part, he shall be entitled to the costs of the review, and to a restoration of so much of the [*159] * damages paid by him, in satisfaction of the former judgment, as that judgment may have exceeded the judgment upon the review ; but the statute does not entitle him to a restoration of any part of the costs of the former trial unless the judgment be wholly reversed.'

Dana and Jos. Locke for plaintiffs in review.

Ward and Bigelow for defendants in review.

Let judgment be entered for the plaintiffs in review for six dollars, being the difference between the first and second verdicts, and for full costs of the review. 
      
      
         Lincoln vs. Goulding, 3 Mass. Rep. 234. -- Galloway vs. Pitman & Al. 3 Mass Rep. 408.
     