Majority
p. 270[514] Small vs. Bixley.[1]
Headnote
Where a defendant in replevin avows and justifies the taking, and only a part of the property is found in his favor, the value of which is assessed at less than $50, he is entitled to no more costs than damages.This was an action of replevin. The defendant avowed and t justified the taking. The jury found for the defendant as to part of the goods, and assessed the value at $10; and as to the residue for the plaintiff, and assessed the value of each residue at $100. The defendant claimed that he was entitled to full
p. 271
costs; whilst the plaintiff contended that he was entitled to no more costs than damages or the value of the goods found in his favor.
By avowing and justifying the taking, the defendant assumed the attitude of a plaintiff, and of course is entitled to no more costs than damages.