
    WILLIAM FERGUSON, JUN., OVERSEER, &c., ads. THE STATE, EX REL. REEVES ET AL.
    1. When proceedings by mandamus are commenced against an overseer of the highways of a township, and pending the same his term of office expires, and an alternative mandamus is then sued out against his successor, and judgment after trial entered against him; the costs in the proceedings against the first overseer cannot he added to the costs in the second suit, upon the ground that the whole constituted hut one continuous proceeding, and was in reality a suit against the township.
    
      % There is no provision in the fee bill for revenue stamps, and there is no more authority to charge for stamps than for stationery, or copies of deeds.
    3. Sundry items of costs considered and corrected.
    On motion for retaxation of costs.
    Argued in the branch court before Justices Elmer and Haines.
    
      For the defendant, A. L. Eakin and P. D. Vroom.
    
    For the relators, G. A. Allen and A. Browning.
    
   Haines, J.

The bill of costs in question was made on a proceeding in which the relators had sued out a writ of mandamus against one William Elkinton, overseer of the highways of the township of Upper Alloways Creek, in the-county of Salem. Various motions were made, and the controversy continued until his term of office expired, and he was succeeded by William Ferguson, jun., the present defendant. An alternative mandamus was then issued against Ferguson,, as overseer of the highways. He made return thereto, and therein averred that he was not such overseer.

On this, issue was joined and the cause carried down to the-Salem Circuit and a verdict there rendered against him.

Costs are drawn and taxed for all the proceedings; against Ferguson not only but against Elkinton as well. And this seems to have.been done because, as it is alleged, the proceeding is in reality against the township, and these persons, as overseers of the highways, represented the township, and that, it is one continuous proceeding.

I am not able so to consider it.

The action is not, in form nor necessarily in effect, against the township, but against its officers, who are responsible each-for his own conduct and not for that of another.

The terms of holding a town office might be very hard if,, in addition to its ordinary duties and responsibilities, the incumbent should be required to answer for the default of his. predecessor.

The costs against Ferguson should be taxed only upon the-proceedings against him. All the items of the bill preceding-the application for a mandamus against him must therefore be-stricken out.. There may be an allowance for retaining fee and entering action as charged. But it is the first item of the bill, and so is against Elkinton. It may be added as against Ferguson.

There is a charge for four witnesses, two days each, four dollars. It appears that the witnesses attended but one day, for those in the county two dollars only cau be charged; here is an excess of three dollars.

There is also a charge for a witness from Trenton, three days and mileage, eight, dollars. The fee bill allows for a witness from a foreign county, after the rate of one dollar a day, in which shall be included bis or her going to and returning from the same, allowing one day for every thirty miles to and from his residence.

The distance-by the usually traveled road from Trenton to Salem, is seventy miles, returning seventy, making one hundred and forty miles, for which, at thirty miles a day, gives four dollars and sixty-six cents mileage, and one day at court one dollar, in all five dollars and sixty-six cents, instead of eight dollars. The excess of two dollars and thirty-four cents must be deducted.

No provision is made in the fee bill for revenue stamps. There is no more authority for charging for stamps on the writs and proceedings in a suit, than there is to charge for stationery or for copies of deeds. That must also be deducted.

The charge for sheriff’s fees for serving the writ of mandamus should be allowed. It may, it is true, be served by a person not an officer. But generally the service by an officer is better. It is more authoritative, and less likely to be disregarded or resisted.

The true policy as tending to the maintenance of peace and good order, is to have such writ served by an officer. The charge, too, comes fairly within the terms of the fee bill, ■which allows fees to the sheriff for every attachment, summons, eapias ad respondendum, declaration in ejectment, or any mesne process issuing out of the Supreme Court.”

By the term mesne process, is generally understood any writ issued between the original writ and the execution. By original process, the first writ at the common law, is not meant the first process, under our statute. Such original writ is not used here. All our writs preceding the execution, are mesne process. In Chitty’s Practice 140, it is said, that by mesne process is meant the writ or proceeding in action to summon or bring the defendant into court.

Mileage by the statute is to be computed from the court house. It is contended' that the court house of the county is meant. But it would seem more properly to mean the house in which is to be held the court, before whom the return is to be made, and such has been the practical construction given to it by the court for a long course of years.

The bill must be retaxed, and' the costs of the motion be paid by the relators.

Elmer, J., concurred.

The result will show the bill retaxed to stand as follows:  