
    [514] Small vs. Bixley.
    
    Where a defendant in replevin avows and justifies the taking, and only a part of the property is found in his favor, the value of which is assessed at less than $50, he is entitled to no more costs than damages.
    
    This was an action of replevin. The defendant avowed and t justified the taking. The jury found for the defendant as to part of the goods, and assessed the value at $10; and as to the residue for the plaintiff, and assessed the value of each residue at $100. The defendant claimed that he was entitled to full costs; whilst the plaintiff contended that he was entitled to no more costs than damages or the value of the goods found in his favor.
    
      
       Overruled in Johnson v. Fellows, 6 Hill, 353.
    
   By the Court.

By avowing and justifying the taking, the defendant assumed the attitude of a plaintiff, and of course is entitled to no more costs than damages.  