Walker v. Burnham

New York Supreme Court

Walker v. Burnham

7 How. Pr. 55

CourtNew York Supreme Court

DecidedAugust 15, 1852

StatusPublished

Cited by1 cases

This text of 7 How. Pr. 55 (Walker v. Burnham) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Walker v. Burnham, 7 How. Pr. 55 (N.Y. Super. Ct. 1852).

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Opinion

Mason, Justice.

I am of opinion that the defendant in executing this military warrant, issued by the colonel of the regiment, is to be deemed a person acting under the command of a militia officer, within the meaning and intent of § 6 (1 R. S. 324), and that as he was prosecuted in this action for an act done by him while acting under such command, he is entitled to treble costs (1R. S. 324, § 6). The present statute in relation to costs has not, in my opinion, repealed this statute, as will be seen by reference to the following cases (Calkins agt. Williams, 5 How. Pr. R. 393; Calkins agt. Williams, 5 id. 395; Murray agt. Haskins, 4 id. 263; Chadwick agt. Brother, 4 id. 283; Westervelt ads. Nelson, 8 Legal Observer, 173; Barber agt. Crossett, 6 How. Pr. R. 45; Foster agt. Cleaveland, 6 id. 253; Cheney vs. Windsor, 5 Denio’s Rep. 96; Fuller vs. Wilcox, 19 Wend. R. 351, 352).

When treble damages are given by statute they are to be actually trebled (25 Wend. 420; 1 Denio, 639); and so when the statute gives treble costs they are to be actually trebled (Dunbar vs. Hitchcock, 5 Taunt. R. 820; 1 Eng. Com. Law R. 279; 2 Rawle R. 201; 3 Yeates’ R. 82; 5 Halst. R. 145; 1 Lord Raymond’s R. 13); and the same was true as to double costs before the Revised Statutes (2 Dunlop’s Pr. 731; Graham’s Pr. 1st ed. 591; McFarland vs. Crary, 6 Wend. R. 303, 311, 321). The Revised Statutes, giving to public officers an increase of costs, have fixed it at the taxed costs and one half in addition (2 R. S. 617, §24); and yet this is called double costs, but it is not so, strictly (19 Wend. 352; 5 id. 93; 25 id. 251; 1 Hill, 673). Bronson, J. says, in the latter case, the old statute gave double costs, but the present statute gives increased costs. I am of opinion, therefore, that the defendant is entitled to treble costs, by which I mean the costs actually trebled; but no costs on this motion are given. Motion granted.

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Mason, Justice.

I am of opinion that the defendant in executing this military warrant, issued by the colonel of the regiment, is to be deemed a person acting under the command of a militia officer, within the meaning and intent of § 6 (1 R. S. 324), and that as he was prosecuted in this action for an act done by him while acting under such command, he is entitled to treble costs (1R. S. 324, § 6). The present statute in relation to costs has not, in my opinion, repealed this statute, as will be seen by reference to the following cases (Calkins agt. Williams, 5 How. Pr. R. 393; Calkins agt. Williams, 5 id. 395; Murray agt. Haskins, 4 id. 263; Chadwick agt. Brother, 4 id. 283; Westervelt ads. Nelson, 8 Legal Observer, 173; Barber agt. Crossett, 6 How. Pr. R. 45; Foster agt. Cleaveland, 6 id. 253; Cheney vs. Windsor, 5 Denio’s Rep. 96; Fuller vs. Wilcox, 19 Wend. R. 351, 352).

When treble damages are given by statute they are to be actually trebled (25 Wend. 420; 1 Denio, 639); and so when the statute gives treble costs they are to be actually trebled (Dunbar vs. Hitchcock, 5 Taunt. R. 820; 1 Eng. Com. Law R. 279; 2 Rawle R. 201; 3 Yeates’ R. 82; 5 Halst. R. 145; 1 Lord Raymond’s R. 13); and the same was true as to double costs before the Revised Statutes (2 Dunlop’s Pr. 731; Graham’s Pr. 1st ed. 591; McFarland vs. Crary, 6 Wend. R. 303, 311, 321). The Revised Statutes, giving to public officers an increase of costs, have fixed it at the taxed costs and one half in addition (2 R. S. 617, §24); and yet this is called double costs, but it is not so, strictly (19 Wend. 352; 5 id. 93; 25 id. 251; 1 Hill, 673). Bronson, J. says, in the latter case, the old statute gave double costs, but the present statute gives increased costs. I am of opinion, therefore, that the defendant is entitled to treble costs, by which I mean the costs actually trebled; but no costs on this motion are given. Motion granted.

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7 How. Pr. 55, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-burnham-nysupct-1852.

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