Rowley v. Gibbs, Standish, & others — 14 Johns. 385

Majority

p. 387

Rowley against Gibbs, Standish, and others.

NEW-YORK,

October, 1817.

Headnote

In replevin, where the COthe" for him, or the Eined,'motherwise barred the defendant is entitled to damses> m,der thiact, sess. 36. c. )’^3 the ¡„e¡,nueegoodí replevin,°f ?he¡r "entire ™ measure™! daiAS<Mtiectmmay appoint toraiwL'Kot reside at a pm t of entry or delivery within w# in-

THIS was an action of replevin, for taking certain goods of the plaintiff; to which the defendants pleaded non cepit, and in justification, that the defendants, Gibbs and Standish, as in-specters of the customs for the district of Champlain, and the other defendants, as their bailiffs and servants, seized the goods ' as forfeited to the United States, for a breach of the non-intercourse law.

At the trial, before Mr. J. Yates, the taking of the goods was proved, and the defendants proved the appointment of Gibbs and Standish, as inspectors of the customs for the district of Champlain. The plaintiff proved, that Gibbs and Standish resided at Granville, as much as eight miles from Whitehall, where were the navigable waters nearest to their residence, and as much as one hundred miles from the port of entry at Cumberland Head, in the district of Champlain, and insisted, that the . collector had no power to appoint inspectors residing at any * x , * ° v place hut a port of entry or delivery in his district; hut the ohjection was overruled. The defendants claimed damages for deterioration in the value of the goods, from the time they were replevied, and interest on their entire value since that time; and the judge having decided that they were entitled to damages, on account of the decrease in the value of the goods, left it to the jury to allow interest or not. The difference in value having been proved, the jury found a verdict for the defendants for 2,300 dollars damages.

A motion was made by the plaintiff to set aside the verdict, and for a new trial.

Z. R. Shepherd, for the plaintiff,

contended, that, at common law, no damages were recoverable by the defendants in replevin :^[3] and that the act relative to replevins, gives damages only where the avowry or cognizance is for rent.^[2]

Again ; the collector had no authority to appoint deputies or inspectors to reside any where except at Cumberland Head, or a place of entry or delivery. It is true, Granville is within the district of Champlain; hut these officers arc to exercise their

p. 388

powers on the water, and must reside at the port or place of enj-jy or delivery.

Skinner, contra,

insisted, that the charge of the judge was correct $ that the plaintiff was entitled to damages. The act relative to costs, is general, that every person making avowry, justification or cognizance in replevin, if the same be found for him, or the plaintiff he nonsuited, or otherwise barred, shall re* cover his damages and costs.^[3]

The inspectors were duly appointed, and there is no law requiring them to reside at a port of entry or delivery, or at any particular place within the district,

delivered the opinion of the court. The principal question in this case is, whether any damages could be -assessed for the defendants ? This will depend on the construction to be given to the statute, (1 N. R. L. 344.) which declares, that every person making avowry, justification, or cognizance, in any action of replevin, if the same be found for him, or the plaintiff be nonsuited, or otherwise barred, then such person ¡shall recover his damages and costs, against the plaintiff, in like manner as the plaintiff would have done if the same had been found against the defendant, At common law, the plaintiff, in replevin, if he recovered at all, had a right to recover damages for the unjust caption and detention of the property; and, then, by the statute of Gloucester, costs followed as a consequence of ■guch damages; but the defendant had no costs. The statute, 7 Hen. VIII. ch. 4., of which our act is nearly a transcript, was. passed to remedy this. Our act is, however, broader than the English statute, that being confined to replevin in particular, cases. Our statute is general, extending to all cases of repleT yin, when the defendant shall succeed in making out his avowry, pr justification, or the plaintiff shall he nonsuited, or otherwise barred. (2 Bac. Ab. costs, (F.))

The case now before us is not only within the words, hqt within the reasons and policy of the statute, which was to prevent vexatious replevins. (Cro. Car. 532. James v. Tutney.) If damages are at all recoverable, I do not see what other rule could be adopted than the one taken at the trial. It was no more than indemnifying the defendants for "the actual injury sustained, and unless they can recover these damages, here, it may

p. 389

be questionable whether they can recover damages at all. At all events, if a suit upon the bond given to the sheriff for the prosecution of the replevin, and the return of the goods should become necessary, there can be no doubt that the plaintill in this cause, may protect himself against any claim for damages by reason of the decrease in the value of the goods, and for which the damages, in this case, have been allowed.

There is no foundation for the objection, that the inspectors of the customs, who made the seisure in this case, did not at Cumberland Head. Such a construction of the law would render it, in a great measure, nugatory in so extensive a district as that of Champlain. This point, though suggested, was not much pressed on the argument. Judgment must, he rendered for the defendants, upon the verdict, as found by the jury.

Judgment for the defendants. ■