12 Wend. 285 | N.Y. Sup. Ct. | 1835
It is well settled, as a general rule, that upon a plea of non cepit merely, in an action of replevin and a verdict for the defendant, he is not entitled to judgment pro retorno habendo. The plea involves merely the fact of taking and the place, and not the title to the property ; it in fact impliedly disclaims title, and if the defendant has any claim or right to a return of the goods, he must add a special plea by way of avowry or cognizance, in order to entitle him to a judgment for a return. 1 Saund. 347, note 1. 1 Chitty, 490. 4 Wendell, 217. But by the revised statutes it is provided, that with the plea of the general issue, denying the taking or detention of the property claimed, the defendant may give notice of any matters which, if properly pleaded by avowry, cognizance, or plea, would be a bar to the action, and which, if the goods have been replevied, would entitle him to a return thereof; and he may give such matters in evidence on the trial, in the same manner and with the like effect as if the same had been so pleaded. 2 R. S. 529, § 44. Under this statute, then, the defendant may plead non cepit, and give notice of any matter which will show his right to take the property, and which, if proved, will entitle him to a return, or to-have his damages assessed under the statute. 2 R. S. 531, § 53, 54, 55. By the 53d section, if the defendant recover judgment by discontinuance or nonsuit, such judgment .shall .he, .that he have return of the goods and chattels
The defendant, then, is entitled to have judgment entered upon the record for the damages assessed in his favor by the jury, with single costs applicable to that issue. The items of his costs must be settled on taxation.
Motion granted accordingly.
On the 21st June last the following case was decided, upon a question of costs in a replevin suit;
Rogers vs. Arnold and others.
In replevin, where a defendant pleads property in the goods, as to a portion of , which the issue is found in his favor, and as to another portion the propeity is found in the plaintiff, but the portion, the property of which is thus found in the plaintiff, is of a value less than $50, the defendant is entitled to recover costs ; but the plaintiff, when his damages are a«sessed at an amount not exceeding $50, in a suit commenced in this court can recover no more costs than damages.
June 21st.
This was an action of replevin for the mill-irons of a saw-mill alleged to have been taken by the defendant, who pleaded non cepit and property in themselves and others. The jury found the goods specified in the declaration to have been taken by the defendants, and that as to a portion of such goods, the property thereof was in the plaintiffs the value of which they assessed at $15,50 and they also assessed the damages of the plaintiff at six cents, and his costs at six cents; and as to the residue of the goods, they found the property thereof tó be in the defendants^ assessed the value of such
By the Court, ''Sutherland, J. The plaintiff’s right to costs was disposed of when this case was before us on a bill of exceptions, ante 38. Mr. Justice Nelson there says, the value of the property not amonunting to $50, the plaintiff can recover only six cents costs; he should have brought his suit in the common pleas, where a ,recovery to any amount would have given him costs 2 It. S. 614, § 12. But the defendants having sueceeded upon p. materia} issue, are entitled to their costs. 2 R. S. 617, § 26, subd. 2. 2 Wendell, 642,
Motion denied.