Griswold v. Sedgwick

3 Wend. 326

• Court: New York Supreme Court
• Decided: October 15, 1829
• Status: Published

Opinion

By the Court,

Marcy, J.

It is necessary to the correct determination to the question of costs in this case, first to ascertain the effect of the judgment in favor of H. D. & R. Sedgwick, on the demurrer to the plaintiff’s replication in answer to the special plea of justification put in by them. By the judgment, the plea of justification was adjudged good, and the court will not look beyond the record to inquire whether the demurrer was sustained on a technical ground, or on the merits. It is an established principle, that where a defendant pleads several pleas in bar, each going to the whole declaration, if he succeeds upon any one plea he has judgment, although the plaintiff may succeed on the other pleas. The judgment on the demureer, therefore, was equivalent to a finding of the jury in favor of both the Sedgwicks on an issue joined on this plea. Consequently the judgment entered against H. D. Sedgwick was irregular, and must be set aside.

The costs of the demurrer are allowed to the Sedgwick’s by the taxing officer, and they now ask to be also allowed the costs of the trial. One of them, Robert Sedgwick, was acquitted by the jury ; the other, Henry D. Sedgwick, having succeeded on a plea adjudged to be good on demurrer, must also be considered as acquitted, notwithstanding that on another plea he was found guilty on the trial. The question therefore is whether a plaintiff, who has succeeded in obtaining a verdict against two, out of four defendants, is liable to pay costs to the defendants who are acquitted. By the second section of our act concerning costs, (1 R. L. 343,) it is provided that if a verdict pass against a plaintiff, the defendant shall have judgment to recover his costs. This section embraces the substance of a number of English statutes, passed previous to the reign of William III., the construction of which has been, that unless all the defendants impleaded in an action are acquitted, the plaintiff is not liable to pay costs to any; but is entitled to recover his full costs against those who are convicted. This construction applies to the second section of our act. To remedy the hardship and injustice resulting from the construction of the statutes referred to, the act of 8 & 9 William III. c. II, was passed, of which the tenth section of our act is a transcript; which provides that where several persons are made defendants to any action of trespass, assault, false imprisonment, or ejectment, and any one or more of them shall be upon the trial thereof acquitted by verdict, every person so acquitted shall recover his costs of suit in like manner as if a verdict of acquittal had been given in favor of all the defendants, unless the judge shall certify, &c. It is contended by the plaintiff that this section applies only where an acquitted defendant has plead separately; and that Robert Sedgwick having joined in the plea of not guilty, with Henry D. Sedgwick, and the latter having been found guilty by the jury, the former looses the benefit of this section. We find no case supporting such a distinction, and consider it in conflict with both the spirit and terms of the act. Robert Sedgwick therefore having upon the trial been acquitted by verdict, and he and Henry D Sedgwick having succeeded upon a plea adjudged good by demurrer, which, as before observed, is equivalent to a finding by a jury in their favor upon an issue joined, they are entitled to their full costs; a single bill of costs however, for both defendants, is only to be taxed.