This petition was by order of the court tried with another filed by a mortgagee of the land claimed by the petitioner. Such a proceeding, under the decision in Farnsivorth. v. Boston, ante, 1, was irregular, and there was a mistrial. Upon the mere question of costs which is presented, the court rightfully ordered judgment for costs for the respondent, if the general judgment for the respondent upon the merits was right. The facts presented by the bill of exceptions show the whole proceeding to have been erroneous, and the only disposition we can make of the case is to permit it to stand in the Superior Court for such proceedings as the parties and that court shall deem proper, in view of that decision.
Ordered accordingly.