Seaman v. Bailey — 2 Cai. 214

Majority

p. 214

Seaman against Bailey.

Headnote

S. P. on a recovery in the common pleas for 25 dollars.

This case, which came before the court on a writ of error to the common pleas of Orange county, was, like the former, a question of costs. The plaintiff, who was the plaintiff below, had recovered 25 dollars in the inferior court, and the j udges there had ordered costs to the defendant.

Jones contended they ought to have been awarded to the plaintiff. That the word “recover” meant everything for which the judgment would be rendered. Therefore, as that would necessarily include the.damages assessed, and the costs also, the plaintiff would actually recover more than 25 dollars, and thus, on the plain words of the act, be entitled to receive costs and not to pay them. A distinction, he said, was to be taken between the wording (sec. 4) of the statute relating to the supreme court, and that of the common pleas, (sec. .5.) In the former, the expressions are “ fifty dollars besides costs.” In the latter they are “ shall not recover above the sum of fifty dollars.” Therefore, though the plaintiff in the last antecedent case was hold liable to pay to the defendant, it would not be a contradiction to that determination, now to decide that the defendant was bound to pay to the plaintiff.

The plaintiff below, who is also plaintiff here, had his damages assessed by a jury of inquiry, over and above his costs and charges, to twenty-five dollars, and for those costs and charges to six cents. On this inquisition, the court of common pleas rendered judgment, that “ the plaintiff recover against the defendant his damages aforesaid, by the said inquisition above found, being twenty-five dollars and six cents; and ^further, that the plaintiff pay to the defendant eleven dollars and nine cents for his costs.”

This judgment the plaintiff insists on is erroneous, inasmuch as it awards costs to the defendant, when he ought to have paid costs to the plaintiff. For the reasons assigned in the preceding case of Van Horne v. Petrie and others, we think the judgment below was right. The fifth section of “ the act to reduce certain laws concerning costs into one statute,” 1 Rev. Laws, p. 580, enacts, that’ if in any action of the nature of the present, brought in any court of common pleas, “ the plaintiff shall not recover above the sum of twenty-five dollars, ho shall not recover any costs, but shall pay costs to the defendant.” In our opinion the plaintiff did not, within the meaning of this section, recover more than twenty-five dollars, notwithstanding the jury gave him six cents costs, nor does the manner of rendering judgment, which is in fact only for the damages assessed by the jury, make any difference, although the attorney, in making up the record, has in a parenthesis, in a way not very usual, stated these damages (very incorrectly by the by) to amount to twenty-five dollars and six cents. As, in the case just determined, we take no notice of the costs found by the jury, but consider the sum assessed as damages, as the recovery intended by the law, the judgment below must therefore be affirmed.

Judgment of affirmance.