jury fees are not allowed, and will be paid back to the plaintiff, but the clerk retains one dollar.

In the Supreme Court, the jury fees are eight dollars.1

Attorney's fee. This is a separate item in the bill of costs, and is allowed in those cases only, in the Court of Common Pleas, where an issue in law or fact has been joined, and the writ has been read, or has been submitted to a jury. For the plaintiff, the attorney's fee is one dollar and fifty cents; but where the defendant is the prevailing party, he is, in practice, allowed in the county of Suffolk, two dollars.

In the Supreme Court, in all cases where an issue in law, or fact is joined, whether the writ be read or submitted to the jury or not, the attorney's fee is two dollars and fifty cents, and as almost every case, which comes to this court, is by appeal, where an issue must be joined, there can rarely be an exception to the rule established in the practice of the county of Suffolk, to charge two dollars and fifty cents, indiscriminately, in all cases.

Witnesses. Witnesses are entitled, before they can be compelled to appear and testify in an action, to their fees, viz: one dollar for a day's attendance, before the Court of Common Pleas, and Supreme Court, and thirty-three cents before a justice, and four cents for every mile's travel, going and returning to the court, to be paid by the party summoning him,

3

Stat. 1795. ch.41. Stat. 1805. ch. 63. Stat. 1817. ch. 88.

$7,00

,08

,25

,67

-$8,09

But under a submission, by bond at common law, of all demands between the parties, it would seem that the arbitrators have no power to award concerning the costs, unless authorized by the submission,' they not being included within the terms of submission.2

The fees of the referees, if taxed in their report, become a part of the costs of suit, to be recovered by the prevailing party, unless otherwise directed by the report; it is usual for the referees, however, to state in their report, by which party they shall be paid.

13. Upon complaint where a writ has been served and returned, but the action is not entered. Where a suit has been commenced by the service of a writ, but the plaintiff fails to enter the action, the defendant may file his complaint in writing, in the court, at the term to which the writ is returnable, setting forth the fact, and thereupon he will be entitled to a judgment for his costs. 3

If the officer have not returned the writ into court, the complainant on motion may have a rule upon him, to shew cause why it has not been returned.

14. In certiorari. Costs will not be allowed, to the respondent, on the refusal of the court to grant a certiorari.1

Nor upon a rule to shew cause why an information in the nature of a quo warranto should not be granted.

'Peters v. Pierce, 8 Mass. Rep. 398.

2 Cutter v. Whittemore, 10 Mass. Rep. 442. Vide Candler v. Fuller, Willes. Rep. 62. Whitehead et al. v. Firth, 12 East. Rep. 165. Wood v. Doe, 2 Term. Rep. 644.

3 Gilbreth v. Brown et al. 15 Mass. Rep. 179. per Wilde J.

4 Exparte Cushman, 4 Mass. Rep. 565.

› Commonwealth v. Athearn, 3 Mass. Rep. 285.

Costs are not gen

15. On petitions and motions. erally allowed upon any matter coming before the court upon petition or motion, unless provided for by

statute.

In the case of petitions for sale of real estate, to the Supreme Judicial Court, when it appears that the petition is unreasonable, the justices of the court may award reasonable costs to such respondent as shall appear and object thereto."

16. On laying out ways. By Stat. 1786. ch. 67. s. 4. it is provided, that if any person, whose property be taken, or damaged by the laying out of the highway, find himself aggrieved by the committee locating the way, or in the estimation of his damages, he may apply to the court for a jury; which being had, if they do not alter the way, or increase the damages, the person complaining shall be at all the costs incurred, to be taxed against him by the court; - but if the jury shall alter the way, or increase the damages, the costs shall be paid by the county, and the damages by the county or district, &c.

By Stat. 1818. ch. 121. s. 2. the party, whose complaint shall have been without just cause, as to locating a new highway, or common road, or in estimating damages, shall be at all the costs incurred thereby.

No costs are allowed, against any party, who rests satisfied with the report of the committee.2

So where a corporation being dissatisfied with the report of the committee, obtain a jury, who return a less amount of damages, no costs are allowed to the owner of the land against the corporation.3

1 Stat. 1783. ch. 32. s. 6.

2 Commonwealth v. Carpenter, 3 Mass. Rep. 268.

• Ibid.

One summoned as trustee, is to be allowed all his demands against the principal, of which he could avail himself in any form of action, or any mode of proceeding between him and his principal, excepting, of course, all claims for unliquidated damages for mere torts.1

The demands must also be due in the same right. A debt due from an executor, or administrator, cannot be set-off against a claim due to the estate.

Cases where set-off will be allowed without filing the account. In actions on policies of insurance, the underwriters have a right to set-off against a loss, not only their premium arising on the same policy, but also premiums arising upon other policies, entered into between the same parties, unless the policies have been assigned, with the assent of the underwriter. This right arises from the lien, which the law gives the underwriters in such cases.2

In consequence of the several statutes in relation to the settlement of insolvent estates, providing for an equitable distribution of the assets among all the creditors, - where mutual demands exist between a deceased insolvent and another person, and the executor or administrator, sues such person at law, the latter has a right to plead his own demand by way of setoff without filing it, and the plaintiff can only recover the balance, if any thing should be due, upon a settlement of all their mutual claims and demands; and the right of such person to a set-off will not be lost, by

1 Hathaway v. Russell, 16 Mass. Rep. 473.

2 Cleveland v. Clap et al. 5 Mass. Rep. 201.

3 McDonald v. Webster, 2 Mass. Rep. 498. Jarvis v. Rogers, 15 Mass. Rep. 407.

his having neglected to present his claim to the commissioners.1

But his claim can be used, only to meet the claim made against him, and he cannot recover any balance, if one should be found due to him.2

So if the creditor of an insolvent estate bring his action, in consequence of his claim being disallowed by the commissioners, the executor or administrator may plead any demand his insolvent had against the creditor, by way of set-off, and if the claim due the estate, exceed that of the creditor, he may recover the balance.3

It is hardly necessary to remark, that where goods have been delivered or money paid by the defendant, in satisfaction of the sum demanded in the action, the aid of the statute is not required, and the account need not be filed; it is equivalent to payment, and may be given in evidence under the general issue.* Thus where there was a parol agreement between a lessor and lessee, that the interest accruing on a sum of money, due from the former to the latter, should be retained by the lessor and applied to the payment of the rent, as it became due, it was holden in an action on the covenants of the lease, to recover the rent, that the lessee might retain, and set-off the rent, against the interest, pursuant to the agreement, it being considered in the nature of a payment.5

1 McDonald v. Webster, 2 Mass. Rep. 498. Jarvis v. Rogers, 15 Mass. Rep. 407.

2 Ibid.

'Stat. 1784. ch. 2. Sewall et al. v. Sparrow, 16 Mass. Rep. 24.

4 Wilby v. Harris, 13 Mass. Rep. 496.