MUDGETT v. MELVIN

When a guardian, in the settlement of his account in the probate court, charges himself with a balance of $38, and the balance for which he is charged by that court is $275, and on his appeal the balance for which he is finally charged is $216.66, judgment may be rendered without costs to either party.

ALLEN, J.

The exception cannot be sustained. Griswold v. Chandler, 6 N.H. 61; Wendell v. French, 19 N.H. 205, 214; Mathes v. Bennett, 21 N.H. 188, 203; Kingman v. Kingman, 31 N.H. 182, 192; Clarke v. Clay, 31 N.H. 393, 404; Whitcher v. Benton, 50 N.H. 25; Olcott v. Thompson, 59 N.H. 154, 157; Nutter v. Varney, 64 N.H. 334. The question of justice presented by the appellant's motion for costs, was a question of fact determinable at the trial term. The decision of that question required a consideration of evidence that is not stated in the case. It does not appear that wrong would have been done if the appellee had recovered a portion or the whole of his costs.

Exception overruled.

BLODGETT, J., did not sit: the others concurred.