
    ESSEX COUNTY RAILROAD COMPANY v. TOWN OF LUNENBURGH.
    
      Costs in Petition for Mandamus.
    
    A petition for mandamus was defended on several competent grounds. The court considered but one ground, and held that sufficient. Held, that defendant was entitled to costs on all the grounds ; but not for the answer, nor for solicitors’ fees for attending the taking of depositions before a magistrate.
    Appeal from taxation of costs. It appeared that defendant’s costs were incurred in defence of a petition against its selectmen and treasurer to compel them to issue its bonds pursuant to an act of the Legislature passed in 1867, in aid of the construction of the petitioner’s road. The petition was heard at the General Term, 1876. The defence thereto, as to which testimony was introduced, proceeded upon several grounds, one only of which was considered by the court, but that one was held sufficient. Upon taxation the petitioner claimed that as all the testimony except such as bore upon the question passed upon was irrelevant and inadmissible, costs should not be taxed therefor; that nothing should be allowed for defendant’s attendance on the taking of depositions, nor anything for pleadings ; and that magistrate’s fees for taking testimony should be allowed only for such testimony as was allowed to be taxed. The clerk disallowed costs incurred as to all other grounds of defence than the one considered by the court; from which the defendant appealed.
    ---; for the defendant.
    ----, for the petitioner.
   By the Court.

The defendant’s costs were incurred in its defence to a petition for a writ of mandamus, brought against it by the Essex County Railroad Company, to compel it to issue bonds, which the petitioner claimed the defendant town was bound to issue by reason of certain action on its part under the Bonding Act of 1867.

In answer to this petition it was competent for the town to show anything in defence that would excuse it from issuing such bonds. The fact that the court heard the case upon some one of the various grounds suggested, is not conclusive of defendant’s right to costs upon other grounds of defence in good faith relied upon, but which were not noticed or deemed material by the court in the view taken of the case. The clerk therefore erred in disallowing all items except the four specified.

The defendant is entitled to all the items claimed, except solicitor’s fees before magistrate and item of $4.75 for answer.

Taxation of the clerk overruled; costs allowed to defendant as claimed before clerk, except solicitor’s fees before magistrate taking depositions, and item claimed for answer. Defendant to recover costs in this court.  