
    Commonwealth versus Ezekiel Carpenter.
    When a corporation, dissatisfied with the damages reported by a committer for .aying out a highway, applies to the Court of Sessions for a jury, by whom the damages are reduced, no costs arising upon such application can be taxed for the owner of the land.
    This was a certiorari, issued upon the motion of the Norfolk and Bristol Turnpike Corporation, to the Court of Sessions for this county, commanding them to certify the proceedings of that court relative to the awarding of damages to the respondent, by reason of the laying lut of the said turnpike road.
    Upon inspection of the proceedings certified, it appeared that a committee, appointed by the Sessions pursuant to the statute creating the said corporation, had awarded a sum of money to Carpenter, the respondent, for the damage sustained by him in passing said road over his land. The corporation, dissatisfied with the report of the committee, applied to the Sessions for a jury to estimate anew the said damage. The jury returned a verdict, by which the damage was reduced, which the court accepted, and awarded the respondent his costs against the proprietors, and for this cause
    
      Tittinghast, of counsel for the commonwealth,
    moved the Court here to quash the proceedings of the Sessions. He thought that on general principles it was very inequitable, [' * 269 ] * that the corporation, having substantiated by the verdict of the jury that they had cause of complaint, and having succeeded in reducing the damages, should nevertheless be held to pay costs to the adverse party. And he contended that, in virtue of the general provision of the law, the party prevailing shall in all cases "recover costs. Costs in this case ought to have been awarded to the corporation, they having prevailed in their application or suit.
    By the statute of 1786, cap. 66, directing the method of laying out highways, provision was made for a jury on the application of any person aggrieved by the doings of the committee in estimating damages; and if such jury shall not increase the damages, the complainant shall pay all costs incurred on that occasion, to be taxed against him by the Court. But no provision was made for the case of a town or other corporation who might think themselves aggrieved by too high an estimation of the damages by the committee.
    By an additional act, 1802, c. 135, any town or other corporation aggrieved by the doings of such committee, may also, on application, have a jury to hear and determine their complaint, in the same manner, and under the same limitations and conditions, as is provided in the former act.
    
    By the act establishing this corporation (1801, c. 69.) the damages are to be estimated by a committee in the first instance, saving to either party the right of trial hy a jury, according to the law which provides for the recovery of damages accruing hy laying out highways.
    
    From these several statutes taken together, it was argued that, .n place of costs being taxed against the corporation, they ought to have been taxed for the corporation against the respondent.
    
      Wheaton, for the respondent,
    
    contended that it was a great hardship upon him, who had been merely passive in the whole transaction, and whose land had been taken from him without his consent, not to receive an indemnity for the labor and expense he had been compelled to lay out, by the unjustifiable pursuit of this corporation. The case may very well be likened to one every day arising in the courts of common law. When the defendant appeals from a judgment of the * Court of Common Pleas given [ * 270 ] against him, and, on trial in this Court, obtains a reduction of the damages, still the plaintiff recovers his full costs.
   Curia.

The statute giving costs to the party prevailing in civil actions does not extend to proceedings of this kind. The silence of the statutes for regulating the method of laying out highways, in respect to the payment of costs by a party who rests satisfied with the report of the committee, is very reasonable. It would, without doubt, be inequitable to mulct him in costs, for what, at most, must be considered as a mistake in judgment of a committee, in whose appointment he had no voice, and over whose inquiries or report he had no control. But there is no provision of law authorizing him to recover costs.

The proceedings of the Sessions in this case must, therefore, be quashed, so far as they relate to the taxing of costs for the respondent against the corporation, and affirmed as to the rest.  