Walker v. Burnham

Mason, Justice. I am of opinion that the defendant in executing this military warrant, issued by the colonel of the regiment, is to be deemed a person acting under the command of a militia officer, within the meaning and intent of § 6 (1 R. S. 324), and that as he was prosecuted in this action for an act done by him while acting under such command, he is entitled to treble costs (1R. S. 324, § 6). The present statute in relation to costs has not, in my opinion, repealed this statute, as will be seen by reference to the following cases (Calkins agt. Williams, 5 How. Pr. R. 393; Calkins agt. Williams, 5 id. 395; Murray agt. Haskins, 4 id. 263; Chadwick agt. Brother, 4 id. 283; Westervelt ads. Nelson, 8 Legal Observer, 173; Barber agt. Crossett, 6 How. Pr. R. 45; Foster agt. Cleaveland, 6 id. 253; Cheney vs. Windsor, 5 Denio’s Rep. 96; Fuller vs. Wilcox, 19 Wend. R. 351, 352). When treble damages are given by statute they are to be actually trebled (25 Wend. 420; 1 Denio, 639); and so when the statute gives treble costs they are to be actually trebled (Dunbar vs. Hitchcock, 5 Taunt. R. 820; 1 Eng. Com. Law R. 279; 2 Rawle R. 201; 3 Yeates’ R. 82; 5 Halst. R. 145; 1 Lord Raymond’s R. 13); and the same was true as to double costs before the Revised Statutes (2 Dunlop’s Pr. 731; Graham’s Pr. 1st ed. 591; McFarland vs. Crary, 6 Wend. R. 303, 311, 321). The Revised Statutes, giving to public officers an increase of costs, have fixed it at the taxed costs and one half in addition (2 R. S. 617, §24); and yet this is called double costs, but it is not so, strictly (19 Wend. 352; 5 id. 93; 25 id. 251; 1 Hill, 673). Bronson, J. says, in the latter case, the old statute gave double costs, but the present statute gives increased costs. I am of opinion, therefore, that the defendant is entitled to treble costs, by which I mean the costs actually trebled; but no costs on this motion are given. Motion granted.