
    COURT OF APPEALS.
    John W. Bartle and others, Appellants agt. William Gilman, impleaded with the Board of Supervisors of Chenango County, Respondents.
    The provisions of the Revised Statutes for the allowance of double costs to public officers, when sued as such, where they succeed in the action, are not repealed or superseded by the Code, and the same remain operative and in full force. {Thus this vexed, question is finally settled. Rep.)
    
      December Term, 1858.
    Appeal from, an order of the general term of the supreme court in the sixth district, affirming an order at special term, granting the defendant double costs, on the ground that the action was brought for acts done by him as a public officer.
    This was an injunction suit against the overseer of the bridge at Oxford, to restrain the collection of a tax upon the plaintiffs, (appellants,) and other tax payers of Oxford, for the expenses, as it was claimed, of the unlawful building of a new bridge. Judgment on a reference was ordered for the defendant, and on appeal at the general term the judgment was affirmed, and ' said judgment has been affirmed in this court.
    Judgment was entered on the referee’s report for single costs, on the 23d of June, 1856, which was affirmed at the general term in July, 1856. Thereafter, on the first Tuesday of August, 1856, a motion was made at special term,'by the defendant Gilman, who was sued as a public officer, for double costs as against the plaintiffs, and the special term ordered that said defendant recover his “ double costs in the action against the plaintiffs, as well as his costs on appeal to the general term,” and double costs in the court of appeals, if an appeal should be had, was also ordered. The general term affirmed the judgment directing double costs in all the courts.
    This appeal is had from the order made at the general term, which order was originally made in this “ action after judgment.”
    The case was submitted on printed points.
    Henry E. Mygatt, for appellants.
    
    James W. Glover, for respondents.
    
   T. R. Strong, Judge.

The only question in this case is, whether the provisions of the Eevised Statutes for the allowanee of double costs, in cases like the present, are repealed by the Code ?

The provisions of these statutes concerning costs, are contained in chapter 10, part 3, Vol. 2, page 612, That chapter is entitled “ of costs and the fees of officers,” and has three titles. The first title relates to “ the cases in which costs may be recovered, and to which double costs may be allowed," and it gives double costs among other cases in actions against public officers for, or concerning any act done by such officers by virtue of their office, when judgment is rendered for the defendants.

The second title relates to “ security for the payment of costs,” and the third is entitled “ of the fees of certain officers,” and prescribes the fees to be allowed for services done or performed in the several courts of law and equity in this state by the officers thereof, “ and among other officers by attorneys, solicitors and counsellors.” By the Code, (§ 303,) “ all statutes establishing or regulating the costs or .fees of attorneys, solicitors and counsel in civil actions, &c., are repealed, &c., but there may be allowed to the prevailing party upon the judgment, certain sums by way of indemnity for his expenses in the action, which allowances are in this act termed costs.” It is then provided in what cases costs shall be allowed to the plaintiff, when to the defendant, and when to either party in the discretion of the court; and that the court may make an additional allowance in certain cases not exceeding a certain rate. The costs are to be adjusted by the clerk on notice. It is really the provisions of the Revised Statutes establishing or regulating the costs or the fees of attorneys, solicitors and counsel, that are expressly repealed by the Code, and those provisions are mostly at least, if not all, in the third title of chapter ten, above referred to. The Code does not profess to abrogate the other provisions of that chapter, and therefore does not do so, except so far as it may be inconsistent with them. Unless inconsistent or in substance inapplicable, they are expressly retained. The sections as to security for costs are untouched ' * by it, and so are all other sections which may operate in harmony with it. In regard to the section allowing the double costs, it is in the first title of the chapter, and the language used is, that “ such defendants,” in the cases specified, shall “ recover the amount of his taxed costs, and one-half thereof in addition,” being what is called double costs; and by the next succeeding section the double costs awarded shall be deemed to belong to such defendant. The attorney, solicitor or counsel, has no right to them; and it seems to be entirely clear, therefore, that the section allowing them is not a statute establishing or regulating the fees of those officers. The Code does not in direct terms repeal that section, and if there is any inconsistency between them, it must arise from the last clause in section 303 of the Code, that there may be allowed to the prevailing party certain sums by way of indemnity, termed costs, or from something peculiar in the general policy of the Code against making any difference in the rate of costs between cases generally and those of a special character. I do not think that any affirmative provision for an allowance of speciñe sums under the name of costs, for expenses in cases generally, is inconsistent with the provision for further sums as costs in particular cases. The sums allowed by the Code, are in fact, not as much as those which were given by former laws, and the effect of the Code, and the sections of the Revised Statutes as to double costs, is that in cases generally, costs are allowed at a certain rate, but in special cases at an increased rate.

And there does not appear to be anything in the general policy of the Code as to costs, which forbids' a discrimination between cases as to the amount of the allowance. The allowance of double costs before the Code, was for the protection of officers whose duties peculiarly exposed them to suits, both from being harassed without cause, and from private loss on account of such suits. The state being under a special obligation to guard its public servants from annoyance and loss for acts in the course of their duties. (McFarland agt. Crary, 6 Wend. 302.) The propriety of this special protection to public officers, and obligation to support it, are as great now as they were formerly.

There is nothing in the fact that the court may now make an additional allowance in some cases, which manifests an intention to abolish the right to double costs under former laws, nor is there anything in calling the taxation of costs by the clerk an adjustment to interfere with the operation of the Revised Statutes giving double costs.

The order should be affirmed.

There was also an opinion by Comstock, Judge, to the same effect.  