Clark v. Dewey

5 Johns. 251

• Court: New York Supreme Court
• Decided: February 15, 1810
• Status: Published

Opinion

Per Curiam.

Costs were not recoverable by the defendant in this case. Our statute, for reducing the laws concerning costs into one statute, declares, that nothing in the statute contained, shall extend to any popular action, nor to any action to be prosecuted by any person in behalf of himself and the people, upon any general statute. (Laws, 24 sess. c. 170. § 19.) The statute of Gloucester, and the statute of 4 fac. I. which we have adopted, being thus excluded from application to this case, it is left as at common law, which gave no costs in any case. The 4th section of the statute of frauds, (10 sess. c. 44.) giving a moiety of the penalty therein mentioned to the party grieved, and the other moiety to the people, and for which penalty this suit was brought, gives no costs of suit. Nor does the plaintiff come within the 8th section of the act to redress disorders by common informers. (11 sess. c. 9.) That section is copied literally from, the 18 Eliz. c. 5. § 3. and it has been long settled. and uniformly held, that the statute of Eliz. only applies to common informers ; and that no action upon any statute by the party grieved, whether the statute gives him the whole or part of the penalty, is within the purview of that statute. (2 Leon. 116. Doghead’s case, 1 Salk. 30. Cowp. 366. Hullock's Law of Costs, 205.) There is then no statute by virtue of which the plaintiff would have been entitled to have recovered, or by which he is boundtto pay costs ; and consequently the taxation of costs and the execution were irregular, and ought to be set aside, with the costs of this application.

Motion granted.