Davis v. Newcomb — 1 Denio 661

Majority

p. 661

Davis vs. Newcomb, impleaded with Harris.

Headnote

A defendant in replevin who has obtained a verdict in a cause in which the plaintiff had a verdict and judgment against the other defendant, cannot be deprived of his costs by the judge certifying that there was reasonable cause for making him a. defendant, the statute, (2 R. S. 616, § 19,) not embracing actions of replevin.

Motion to compel the plaintiff to insert in the record a judg- • ment for the costs taxed on behalf of the defendant Newcomb.

The action was replevin. The defendants appeared by the same attorney and pleaded jointly. Verdict for the plaintiff against Harris, and in favor of Newcomb, who has had his costs taxed; but the plaintiff refuses to have them inserted in the record. The circuit judge had certified in the minutes that there was reasonable cause for making Newcomb a defendant.

N. Hill, Jr. for the defendant Newcomb.

D. Wright, for the plaintiff.

The legislature have provided that where one or more of several defendants, but not all of them, shall succeed in his or their defence, “in any action brought for the recovery of land or the possession thereof, or of nuisance, ' waste, trespass, or trespass on the case for any non-feasance cr mal-feasance, and if the judge or court before whom such trial shall be had, or such judgment shall be given, shall certify in

p. 662

the minutes of the court, that there was reasonable cause, for making the person so acquitted a defendant in such action, then such person shall not be entitled to recover such costs.” (2 R. S. 616, § 19; see also § 18.)

The action of replevin is not one of those named in the section, and although the reason for refusing costs in that action may be much the same as in the action of trespass, or trespass on the case, I do not feel authorized to give such a construction to the words used. The former statute was still more restricted in its terms, for it extended only to “ trespass, assault, false imprisonment or ejectment,” (1 R. L. of 1813, p. 345, § 10,) and yet legislation was deemed necessary to extend the provision to other actions, as has been done by the above section of the revised statutes.

Motion granted.