Porter v. Willet

Monell, J. Upon the cases of Seymour a. Billings (12 Wend., 285); Rogers a. Arnold (Ib., 288, note); Johnson a. Fellows (6 Hill, 353), and Hull a. Halsted (1 How. Pr., 174), the defendant is entitled to costs in this action, unless the changes produced by the Code have taken from them their weight of authority. The action of replevin before the Code was regulated by statute (2 Rev. Stat., 521), which prescribed the form of the writ, declaration, and pleas. The writ was either for the taking and unjust detention, or for the unjust detention only, or for both the wrongful taking and detention. Where the action was founded on the wrongful taking, the plea of the general issue (non cepit) put in issue not only the taking, but the taking in the place stated, when the place was material. Under this plea, the plaintiff was not required to show property in himself; [325] nor could the defendant, unless he was a public officer (2 Rev. Stat., 353, § 15), prove property in himself or in a third person. Where the action was for the wrongful detention, the plea of the general issue (non detinet) not only put in issue the detention, but the property of the plaintiff. Under either of these pleas, if the jury found for the plaintiff, they assessed his damages, and the value of the goods; if they found for the defendant, they assessed his damages, and the value of the goods. If the plaintiff had the verdict, and the goods had been replevied, the judgment was for his damages and costs; but if they had not been replevied, he had an additional judgment for the return of the goods, or in default of a return, that he recover their value. In an action against the sheriff, whether in the cepit or detinet, if he had a verdict, and the goods had been replevied, he had judgment for a return and damages; if not replevied, his judgment was for damages and costs only. And these were the appropriate judgments under the plea of the general issue alone. A defendant, a public officer, would have to' plead or give notice specially of property out of the plaintiff to authorize a judgment for the return. Had this action been under the Revised Statutes, it would have been both for the taking and detention. The allegation in the complaint is, “ that the defendant has wrongfully taken and wrongfully detains,” &c. The plea of the general issue would have been both non cepit and non detinet, which would have put in issue the taking, and also property in the plaintiff, and the defendant could have proved property in himself or in a third person. The distinction which was attempted to be drawn between actions in the cepit and detinet, if any exists, can have no force in this case, which, as we have seen, is both for the taking and detention, and it gains no additional strength from the provisional remedy provided by the Code for reclaiming property. The verdict in this case was for the plaintiff for part of the property, “ and for the defendant for the return of the residue,” describing it, and assessing its value. It seems to me we are brought with great clearness within the principle of the cases to which I have referred. The action of replevin in all except its form, and the additional provisional remedy provided by the Code (§ 211), re [326] mains where it was left by the Revised Statutes. The form, and name of the action is abolished, but the cause, the right, and the remedy remains to be enforced and pursued, not by the old formula, but by newly prescribed proceedings. The effect given, therefore, to the action by the courts, under the Revised Statutes, and the rights arising incidentally under it, must be regarded as continuing unrepealed by the Code. ■ But it is said that this splitting a declaration into two counts, as was done in Seymour «.Billings (12 Wend., 285), was unknown before the Revised Statutes. This is not so. The revisors, in their notes to the section of the Revised Statutes referred to, say (3 Rev. Stat., 2 ed., 798): “ The questions presented in the preceding section have given rise to much difficulty in England. See cases well collected in the American edition of Oomyns’ Digest, vol. 3, p. 237, from which the preceding rules have been extracted, as being upon the whole the best guide that can be given, and preferable to the discretion given by 1 Rev. Stat., 519.” And they refer to several English cases where costs were given to both parties,—viz., 1 East, 350; 1 T. R., 654; 6 Ib., 602. By the Revised Laws of 1813 (vol. 1, p. 519, § 10), costs to both parties was in the discretion of the court. The only remaining question to be examined, is whether the Code (§ 303), which repeals “ all statutes establishing or regulating the costs of attorneys, solicitors, and counsel in civil actions,” has in terms or effect repealed the provisions of the Revised Statutes, under which the defendant claims costs in this action. In addition to a special-term decision (Dresser a. Wickes, 2 Abbotts’ Pr., 460), which holds expressly that this provision of the statute is not repealed by the Code, it has frequently been decided that many parts of the Revised Statutes, establishing the right to costs in certain cases (not the amount) are not affected by the Code. Thus double costs to a public officer. (2 Rev. Stat., 617, § 24; Decker a. Gardiner, 8 N. Y., 29; Bartle a. Gilman, 18 Ib., 260.) In the latter case, the court substantially held, that the “first” title of chapter 10, of part 3 of the Revised Statutes, relating to costs and fees of officers, is not repealed; and it is apprehended that many of the provisions of that title, giving or refusing costs in prescribed cases, are still in force. [327] But it is said that section 305, which gives to the defendant costs of course in the actions mentioned in the preceding section 304, unless the plaintiff be entitled to costs therein, must be deemed to exclude the defendant from costs in all cases where the plaintiff is entitled to them, and that therefore the provisions of the Revised Statutes giving costs to both parties in certain cases, is repealed' by implication. I am not aware that this argument is new. The effect of sections 304, 305, as repealing by implication, was incidentally considered in Dresser a. Wickes, and must necessarily have been regarded in Decker a. Gardiner and Bartle a. Gilman. No greater effect can be given to sections 304, 305, than to section 303. All these sections relate to the costs or fees of attorneys, and excepting so far as they and other parts of title 10 of the Code fix the rate of compensation allowed to the party, they do not affect or repeal the^right to costs in certain cases conferred by the Revised Statutes. An argument was made from the seeming difficulty in adjusting costs to both parties in one action under the Code. If such a difficulty exists, which I cannot see, it may be a good reason to address the Legislature for a repeal or modification of the existing law, but cannot, unless it is insurmountable, affect the judgment of the courts. But no such difficulty exists. The rate of costs to a party is as clearly defined now as it was nnder the old “ fee billand although it may seem disproportionate, it affords no reason for supposing that the Legislature did not intend to give it. As the right to “ double” costs in this action was abandoned by the defendant under direct authority against it, the amount must be adjusted accordingly. In all other respects the motion for a retaxation must be denied. As this is a new question, no costs are given on the motion.