
    *S. G. Martin’s Case.
    Costs of proceedings under occupying claimant law recovered by the party who prevails in the application.
    George P. Cotton prosecuted ejectments against Samuel G. Martin, which were finally tried in-the supreme court of Clinton county. Martin set up title in himself, but Cotton recovered. Application was then made by Martin for the appointment of commissioners to value his improvements, under the provisions of the law for the relief of occupying claimants of land:' This application was sustained. The commissioners reported in his favor, and the proper orders were made for securing to him the advantages allowed by law. A question arose who should be held chargeable with the cost that accrued upon the application for, and proceedings of the commissioners, and the decision of this question was reserved and referred to this court.
    Dunlevy, for Martin, cited 1 Bibb, 116, as evidence that, in proceeding under a similar statute in Kentucky, the costs of the com. missioners and th eir proceedings were charged against the party who was unsuccessful. In support of the reasonableness of this course he urged, that if the costs of such application were to be considered part of the costs of the suit, and charged, as matter of course upon the defendant, against whom a verdict must pass as the foundation of his application, the opposite party would be tempted to multiply costs vexatiously, as they could not fall upon him.
   By the Court :

As the commissioners may be appointed upon the application of either party, it must be considered as a separate proceeding, in which the party prevailing is entitled to his costs. In this case the application having been made by the defendant, in whose favor judgment has been rendered upon it, the court are of opinion that the costs must follow that judgment, and that an order be entered on George T. Cotton, lessor of the plaintiff, to pay the costs in question.  