Davis v. Newcomb

1 Denio 661

Opinion

By the Court, Beardsley, J.

The legislature have provided that where one or more of several defendants, but not all of them, shall succeed in his or their defence, “in any action brought for the recovery of land or the possession thereof, or of nuisance, ' waste, trespass, or trespass on the case for any non-feasance cr mal-feasance, and if the judge or court before whom such trial shall be had, or such judgment shall be given, shall certify in the minutes of the court, that there was reasonable cause, for making the person so acquitted a defendant in such action, then such person shall not be entitled to recover such costs.” (2 R. S. 616, § 19; see also § 18.)

The action of replevin is not one of those named in the section, and although the reason for refusing costs in that action may be much the same as in the action of trespass, or trespass on the case, I do not feel authorized to give such a construction to the words used. The former statute was still more restricted in its terms, for it extended only to “ trespass, assault, false imprisonment or ejectment,” (1 R. L. of 1813, p. 345, § 10,) and yet legislation was deemed necessary to extend the provision to other actions, as has been done by the above section of the revised statutes.

Motion granted.