Lawrence v. Titus — 1 N.Y. Super. Ct. 421

Majority

p. 421

Jonathan Lawrence versus John Titus, Jr., Daniel Y. Townsend, & Richard Ellis.

Feb. Term, 1829.

Headnote

In actions of trespass against an officer and persons acting in his aid ; where the defendants appear by the same attorney, but sever in their defence, and are suc- ■ cessful; the officer is entitled to double costs, and each of the lay-defendants, to single costs for all items not allowed to the officer.

This was an action of trespass, de bonis asportatis, brought against the defendants, (one of whom was an officer) for seizing property under an execution against one Charles Lawrence, which the plaintiff claimied as his own.

The defenants severed in their defences, and gave distinct pleas. The officer pleaded not guilty. Each of the other defendants, pleaded not guilty, and gave special notices, that they were plaintiffs in the executions under which the officer acted, &c. Verdict for the defendants.

Their case was submitted to the court for directions to the taxing officer.

Mr. J. Jlnthon for defendants, insisted,

I. That each defendant was entitled to double costs: the officer, as expressly protected by the statute and the other two defendants, as acting in his aid.

II. If the lay-defendants are not entitled to double costs, then they claim full bills of single costs, and the officer claims double costs.

For the defendants were cited the statute [1 R. L. 155.] and the case of Row v. Sherwood, [6 John. R. 109.]

Mr. Wm. S. Sears for the plaintiff contra contended.

I. That the attorney for the defendants in this cause was entitled to but one retaining fee : the same attorney having appeared for all the defendants.

p. 422

II. That the attorney for the defendants is entitled only to single costs, except for the separate plea of the defendant, Ellis ; ^ whole proceedings in the cause having been conducted jointly by the defendants, in the name of the same attorney. He cited, Wales v. Hart & Dowd. [2 Cowen, 426.]

directed,

I. That the officer should be allowed a full bill of costs, doubled.

II. That the other defendants should be allowed single costs, for all items, not allowed to the officer.

[Mr.