Herald of June 1st, 1852, and which may probably be regularly reported hereafter : C. F. Spear and others v. Lawrence Hyers.-The practice of this court has been to allow a set-off of judgment, without reference to the attorney's lien for costs. It seems to me that this rule, although it is well established by authority, is inequitable in its operation. But when, as in this case, there has been an assignment of the costs by the party to his attorney for a valuable consideration, after the greater part of the costs have accrued, and before the opposite party have acquired a right of set-off, I think that such assignment should be sustained. It has been so held, where the interest of the party had been assigned before a referee had signed his report, (4th Hill 559), and, in my judgment, the assignee's rights ought equally to be protected in this case. Motion denied, without costs. Under the Revised Statutes, sec. 24, of title I. chap. X. part III. (2 R. S. 617), a public officer, sued for an official act and prevailing, is entitled to recover double costs. A question of some nicety has arisen, as to whether this enactment is or is not repealed by the,Code, the decisions on which are numerous and discordant. In Murray v. Haskins, 4 How. 263, it was held that those provisions are not repealed by sec. 303 of the Code, inasmuch as they are not provisions for regulating the costs or fees of attorneys or counsel, but merely additional allowances made by way of indemnity to certain parties under certain circumstances; and that, as such, they are within the saving of sec. 471, as being existing "statutory provisions not inconsistent" with the code, and "in substance applicable to the actions thereby provided;" and this conclusion is supported by Chadwick v. Brother, 4 How. 283; Westervelt ads. Nelson, 8 L. O. 173; Calkins v. Williams, and Calkins v. Brand, 5 How. 393 and 395, 1 C. R. (N. S.) 53; and lastly, by Barber v. Crosset, 6 How. 45; 1 C. R. (N. S.) 401. In Foster v. Cleaveland, however, 6 How. 253, 1 C. R. (N. S.) 402, it was held by one of the learned judges maintaining this conclusion, that double costs of this nature could not be allowed on an appeal by an officer so sued: but see Burckle v. Luce, 3 How. 236. And, in Calkins v. Williams, it was also considered that such costs could not be claimed on a referee's report, but only on verdict, judgment, non pros., or discontinuance; under which circumstances, an allowance under sec. 308 was granted in lieu thereof. The contrary conclusion, i. e., that the provisions of the Revised Statutes are repealed by the Code, and that double costs cannot now be claimed by a public officer under any circumstances, is established by an equally numerous and apparently preponderating series of decisions. See Hallenbeck v. Miller, 4 How. 239; Van Rensselaer v. Kidd, 5 How. 242; 3 C. R. 224; Moore v. Westervelt, 3 Sandf. S. C. R.762; 1 C. R. (N. S.) 131; (a decision of the general Term of the superior court, in which the subject is very fully discussed.) Nestle v. Jones, 6 How. 172; 1 C. R. (N. S.) 401 ; and Bagner v. Jones, 1 C. R. (N. S.) 234. Most of these cases proceed on the supposition that, in a proper case, an extra allowance will generally be made under sec. 308 to an officer so sued; and an application of that nature, rather than a contestation of the question, would seem to be the more eligible course under such circumstances. The provisions of the Code as to costs, (with the single exception of sec. 315, with reference to the costs of a motion, which is rendered so by the supplemental act,) have been held not to be retrospective in cases commenced before, but decided after its original passage, and which are therefore governed by the old fee bill.-See Poillon v. Haughton, 2 C. R. 14, and Truscott v. King, 4 How. 173. See, also, 3 C. R. 119. The costs of a suit, commenced under the code of 1848, but decided under that of 1849, were held, however, to be governed by the provisions of the latter, in Holmes v. St. John, 4 How. 66; 2 C. R. 46. An appeal to the court of appeals, taken under the Code, from a decision pronounced before its passage is, on the contrary, a new suit in relation to costs, and such costs will accordingly be allowed under the new instead of the old fee bill. -Bokee v. Banks, 9 L. O. 135; 3 C. R. 218; Kanouse v. Martin 2 Sandf. S. C. R. 739. The question as to the cases in which security for costs may or may not be required, and the extent of that security, has been before considered, under the head of the defendant's proceedings, after receipt of the complaint, and before answer. The allowance of costs to a successful plaintiff is thus prescribed by sec. 304: § 304. Costs shall be allowed of course to the plaintiff upon a recovery, in the following cases: 1. In an action for the recovery of real property, or when a claim of title to real property arises on the pleadings, or is certified by the court to have come in question at the trial. 2. In an action to recover the possession of personal property. 3. In the actions of which, according to section 54, a court of a justice of the peace has no jurisdiction. 4. In an action for the recovery of money, where the plaintiff shall recover fifty dollars or more. But in an action for assault, battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation, or seduction, if the plaintiff recover less than fifty dollars damages, he shall recover no more costs than damages. And in an action to recover the possession of personal property, if the plaintiff recover less than fifty dollars damages, he shall recover no more costs than damages, unless he recovers also property, the value of which, with the damages, amounts to fifty dollars. Such value must be determined by the jury, court, or referce, before whom the action is tried. When several actions shall be brought on one bond, recognizance, promissory note, bill of exchange, or other instrument in writing, or in any other case, for the same cause of action, against several parties who might have been joined as defendants in the same action, no costs other than disbursements shall be allowed to the plaintiff, in more than one of such actions, which shall be at his election, provided that the party or parties proceeded against in such other action or actions, shall, at the time of the commencement of the previous action or actions, have been within this state, and not secreted. It will be seen that, by this section, a plaintiff is entitled to costs as of course, in most, if not in all cases of importance. The provision in subdivision 3, as to actions in which a justice of the peace has no jurisdiction, comprises within its scope the following, as laid down by sec. 54: Actions to which the people of the state are parties, excepting for penalties not exceeding $100. Actions where the title to real estate comes into question. Actions for the major description of torts, enumerated in subdivision 4 of sec. 304, as above. Actions in respect of a matter of account, where the sum total of the accounts of both parties, as proved, exceeds $400, and, Actions against executors or administrators as such, (but see subsequently as to this last point.) The last-mentioned clauses are, as will be seen, partly identical with, and partly in augmentation of the other categories, under which, by virtue of the section itself, a plaintiff will be entitled to costs as of course. Where the title to land has been brought into question, even though collaterally, the plaintiff will be entitled to costs on a recovery, however small the actual amount of that recovery may be.-Powell v. Rust, 8 Barb. S. C. R. 567; 1 C. R. (N. S.) 172. The action in that case was for a trespass, in respect of which $5 damages were awarded to the plaintiffs; a question was, however, raised on the pleadings, as to whether the defendant had, or had not a right to do the acts complained of, under a reservation made by him on an agreement for sale of the property in question; under which circumstances, the court held that the title to land came clearly into question, and that a justice of the peace had no jurisdiction of the case. It is clear, from subdivision 4, that, in money actions, considered in a general point of view, the plaintiff cannot claim any costs at all, unless his recovery amounts to $50. The provision limiting the amount of costs in the actions for torts enumerated in that section, where the recovery is less than that amount, was not in the original Code, but was first inserted in that of 1849. It was held, however, in Holmes v. St. John, 4 How. 66, that an action falling within this class, commenced under the prior, but decided under the subsequent measure, fell within the provisions of the latter, and, the plaintiff having recovered six cents damages, was only allowed the same amount for costs. A question has been raised, as to whether, on a recovery of the nature last alluded to, the plaintiff can or cannot claim disbursements, in addition to costs to the amount of the recovery; such disbursements to be taxed by the clerk, and inserted in the entry of judgment, under sec. 311. In Taylor v. Gardner, 4 How. 67, it was held that he could do so; and the same principle was maintained in Newton v. Sweet, 4 How. 134, 2 C. R. 61, on the parallel question of a recovery against executors. On the other hand, it was decided, after a lengthened examination, in Belding v. Conklin, 4 How. 196, that the term "costs," as used in the Code, embraces-1, lawyer's fees; 2, officer's fees; and, 3, disbursements; and that, therefore, a plaintiff recovering only six cents damages in slander, could only recover six cents in respect of costs, and in full for all disbursements and expenses whatever. In Wheeler v. Westgate, 4 How. 269, the above cases were fully discussed at general term, and the doctrine laid down in Newton v. Sweet and Taylor v. Gardner was formally overruled, and that of Belding v, Conklin fully confirmed. The same conclusion is also come to in Stone v. Duffy, 3 Sandf. S. C. R. 761; 1 C. R. (N. S.) 129; and Keating v. Anthony, 1 C. R. (N. S.) 233. The latter may, therefore, be considered as the settled doctrine. See, also, Swift v. Dewitt, 1 C. R. 25. A plaintiff, recovering the possession of personal property, with damages of small amount, should take special care to apply for an assessment of the property itself upon the trial, in order to bring his case within the terms of this section, or his recovery may, to this extent, be defeated. Attention should be paid to the last clause of section 304, in cases where there are several parties to the same bill of exchange, or other instrument, and they may have been separately sued. No case appears as yet to have arisen on this question; but, upon the principles laid down in relation to the omission of notice of taxation, in the cases before cited on that point, under the head of proceedings between trial and judg ment, it would probably be held that an improper allowance in this respect, on the part of the taxing officer, would not vitiate the judgment itself, but would be remediable by means of a retaxation, upon a proper application for that purpose. The provisions in relation to the allowance of costs to a defendant prevailing in the action, are thus contained in sec. 305: § Costs shall be allowed of course to the defendant, in the actions mentioned in the last section, unless the plaintiff be entitled to costs therein. The following passage in sec. 306, has also reference to this subject:"In all actions where there are several defendants, not united in interest, and making separate defences by separate answers, and the plaintiff fails to recover judgment against all, the court may award costs to such of the defendants as have judgment in their favor, or any of them." The following cases have arisen under these last provisions: Where three defendants, sued in assault and battery, appeared by different attornies, and two were acquitted; it was held that both such defendants were entitled to costs, as of course, under sec. 305.-Hinds v. Myers, 4 How. 356. See also Castellanos v. Beauville, below cited. The attornies must not, however, be partners, or the contrary will be the case.-See Crofts v. Rockefeller, below cited. |