Hawley v. Green & Brooks — 18 Wend. 343

Majority

p. 343

Hawley vs. Green & Brooks.

Headnote

In replevin, where the plaintiff has a verdict for nominal damages, but the value of the property is not assessedby the jury, the plaintiffis not entitled to costs of increase; the appraisal by the sheriff on taking the replevin bond will not help him.

Costs in replevin. The verdict was for the plaintiff, with nominal damages; but the jury did not assess the value of the property replevied. It had been ascertained by the sheriff, who took the replevin bond at $55, and the plaintiff had his costs taxed at the common pleas rate, which he collected. A motion was made to set aside the judgment as to costs of increase, and to refund.

By the Court,

The motion must be granted. The better eonstruc

p. 344

tion of the statute is, that to carry costs on the value of the property, the value must be assessed by the jury, (2 R. S. 437, § 48, 2d ed.,) and not by the sheriff’s appraisal. (12 Wendell, 38.) When the cause is tried, a part of the goods may be awarded to the plaintiff and a part to the defendant. In such case, the original appraisal would be no guide. Motion granted.