Majority
p. 149*Salisbury against Parker and Pierce. NEW YORK, May, 1827.
Headnote
supreme court by habeas corpus. In a case where the p1aintifl~ would have recovered costs in the 0. P.; he shall have them on the defendant's removing. his cauáe to theT~r~ plaintiff sued the defendants in the Erie. common pleas, for a ma1icio~us prosecution. The, d~feudants removed the cause by hab.ec~s corpus iuto this ~court,• where the plaip.tiff~ecovered $25. damages.
J. Platt
now moved for judgment, with full supreme court~ costs..
E. Cowen, contra.
The 4th section, of the.statute.of eosts, denieg them-to-the plaintiff,- unless he.-recovers above $50. l'E. L; 343;- And the proviso to that section, in favor of -, suits removed by habeas corpus from the common pleas, requires that, to obtain costs, he should recover .exceeding $25-besides-costs.. The damages cannot- be increased by adding the nominal-costs of-6 cents, found.-.by the jury. 2 Caines, 213; 2 John. 283 , 288.
p. 150
The ease then cannot be distinguished from that of Waterman v. Benschotten, ( 13 John. 425 ,) which holds that the plaintiff cannot recover costs'"merely on -the :ground- that his action woizld have carried them in the court below. That was slander, commenced'1 'in " the- O. P. and - removed by habeas corpus. The plaihtiff recovered $10. But costs were denied,' on the ground that-the ease was not saved by the "4th section. ’ 'Within the principle' of that case, the defendant is here entitled to his -costs. The statute subsequently passed, and" which was "probably founded on that decision, does not reach a case of malicious prosecution. It provides, that in action of battery, false imprisonment, or for slanderous words, commenced in the O. P. and removed by habeas corpus, the plaintiff shall have costs if he recover anything; (stat. sess. 40, ch. 278, s. 2;) leaving the action of malicious prosecution to the general statute of costs. In Bennett v. Rathbun, ( 17 John. 37 ,) the title to the land was in question.
Platt, in reply.
This recovery would have carried costs in the court below. A habeas corpus is considered *as a continuation of the suit for the purposes of bail, because a contrary rule would work injustice. (Bell v. Hall, 12 John. 152 .) Upon a like principle in Bennett v. Bathbun, ( 17 John. 37 ,) a habeas corpus was held" to be a continuation of a suit in trespass guare clausum fregit, for the purp ose of carrying double costs.
Again; it is conceded that a recovery" to this amount, would carry costs in slander. In Haff v. Hutchinson, (1 Cowen, 415,) this court held that ¿Zander'included' libel, for the purpose of costs. Why not, upon the same principle of construction, say that it includes malicious prosecution ?
Ho doubt the legislature, in the proviso to the 4th section of the statute of costs, had their eye particularly on that class of actions which would not carry costs in th common pleas, unless the recovery exceeded 25 dollars. So far it adopts the principle, which is certainly a very reasonable one, that a plaintiff suing in the 0. P. and entitled
p. 151
to costs there, shall not be deprived of them because the defendant removes the cause into this court; that for the purpose of costs, the cause shall be considered as continued py the habeas corpus. This court avow that principle in Bennett v. Rathbun; and as we understand that case, it was decided upon this principle. It is certainly very just that the plaintiff should be deprived of no substantial rights by the act of the defendant. This principle was also acted upon in Bell v. Hall. True, it seems to be questioned by Waterman v. Benschotten; but we think that case may be sustained without touching it.
We decide that the plaintiff is entitled to full costs, upon the ground that he would have recovered costs in the common pleas.
Motion granted.