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Washburn v. Overseers of the Poor of Hebron

9 Johns. 119 Court N.Y. Sup. Ct. English

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p. 119
Washburn against The Overseers of the Poor of Hebron.
NEW YORK
May, 1812

Headnote

On appeals is cases of bastardy, the general sessions of the peace have no war costs a‘ tute; and no exiite^under ^March of sothJtfarcA1 mo, (sess*. 24. c. 109.) does not to appeals brought be. fore the passing of the act.
THIS was an appeal, by Thomas Washburn, from an order 5>f two justices, made under and by virtue of the act, entitled “ An act for the relief of cities and towns from the maintenance of bastard children,” passed 6th March, 1801. The order was made on the first day of May, 1809, and the appeal entered at the then next general sessions of the peace, held in and for the county of Washington i and at the August sessions, in 1810, the order was quashed; at the then next general sessions of the peace, in December thereafter, the appellant moved for costs against the appellees, which the court granted. The only question was, whether the appellant was entitled to costs.
Crary, for the defendants, contended, that the statute gave no ... . , , . „ ° , costs m this case, and, by common law, no costs are allowed.
Again, the court having quashed the order without costs, could not review their decision, afterwards, and grant costs. Cro. Car. 350. Burr. Sett» Cases, 194. 2 Johns. Rep. 251 . 1 Caines’ Rep. 129 .
Skinner, contra. If the order had been affirmed, the party
p. 120
would have been entitled to costs under the act. Where one party can recover costs, the other may also. (Sess. 24. c. 170. s. 1. and 2. sess. 24. c. 18. s. 5.)
Crary, in reply, observed, that by a late statute, (sess. 33, c« 109. s. 3.) the legislature had allowed costs on appeals of bastardy, which shows, in their opinion, that no costs were allowed undér the former statute.

There was no statute provision, authorizing the sessions to award costs in any case of bastardy, brought before them, under the act of 1801. (Laws, vol. 1. 194.) The provision in the act of 30th "March, 1810, c. 109. does not apply to cases of appeal, brought before the passing of the act, and unless the sessions are authorized specially by statute, to award costs, they have no authority to award them. The quarter sessions in England have no authority, to this day, to award costs in cases of this nature. (King v. Sweet, 9 East, 25.) In this case, then, none were to be awarded.