
    Johnson vs. Fellows.
    In replevin, where a verdict is rendered which gives the defendant a right to have return of part of the property, though its value be assessed at less than fifty dollars, and the other issues are decided against him, he is nevertheless entitled to full costs of the issue found in his favor.
    To a declaration in replevin containing but one count, the defendant interposed a plea of non cepit, under which he proved at the trial that he was a constable, and took the property by virtue of a landlord’s warrant. The .jury found in favor of the plaintiff for part of the property, and in favor of the defendant for the residue, assessing the value of the latter at twenty-four dollars. Ueld3 that the defendant was entitled to full costs on the finding in his favor.
    The case of Small v. Bixley, (18 Wend. 514,) overruled.
    Costs in replevin. The plaintiff declared for taking &c. a quantity of household furniture, and the declaration contained but one count, to which the only plea was non. cepit. On the trial, the defendant proved that he was a constable, and took the furniture under a distress warrant. The plaintiff claimed that the furniture was exempt, and the jury found in his favor as to part of it, assessing the value at §90. As to the residue, they found the title to be in the defendant, and assessed the value at §24. The plaintiff’s costs were taxed at §90,41, and those of the defendant at §54,17.
    
      
      N. Hill Jun., for the defendant,
    now moved for a rule oí; . order directing the plaintiff’s attorney to insert the costs of the defendant in the judgment record. (Seymour v. Billings, 12 Wend. 285.)
    
      D. Pratt, for the plaintiff,
    insisted that the defendant was entitled to no more costs than damages, the jury having assessed the value of that part of the property for which he recovered at less than fifty dollars. (2 R. S. 509, § 7, 2d ed.; Small v. Bixley, 18 Wend. 514.)
   By the Court, Nelson, Ch. J.

The question in this case is, whether the defendant is entitled to costs, under the circumstances, he having succeeded in showing that a part of the property replevied belonged to him. The cases of Seymour v. Billings, (12 Wend. 285,) and Rogers v. Arnold, (id. 288, note,) would be in point for the defendant, had the value of the property found in his favor exceeded fifty dollars. Does this distinguish the present case ? I apprehend not. In Seymour v. Billings, the declaration contained but one count, to which the plea was non cepit; and on the trial the defendant justified as a constable, by virtue of an execution, under the statute which allows public officers to plead the general issue and give the special matter in evidence. The jury having found for the plaintiff in respect to one parcel of the property, and for the defendant as to the residue, the court said the verdict must be treated as if the declaration contained two distinct counts for the respective parcels, or the defendant had avowed for each respectively. In that aspect of the pleadings, a substantial issue was found in favor of each party, and each was entitled to costs. (2 R. S. 512, § 27, 2d ed.; Wright v. Williams, 2 Wend. 632.)

If the court were right in thus moulding the pleadings in the case of Seym,our v. Billings, there can be no doubt of the correctness of the conclusion at which they arrived, irrespective of the value of the property found in favor of the defendant. Indeed, I do not see that the amount of property successfully defended has any thing to do with the right to costs. For, as the defendant is compelled to appear and defend, whether the amount be more or less than fifty dollars, the principle is the same. He has no alternative but to litigate, or give up his property.

Though there may be some difficulty in regarding the verdict as in effect rendered upon a declaration containing two counts, where there is in fact but one, it seems to me we may treat the present case as though there had been separate avowries for each parcel of the property, without any forced construction of the pleadings. For, by 2 R. S. 277, §§ 14, 15, 2d ed., an officer may give the same matter in evidence under the general issue, that he may under any form of appropriate special pleading.

The conclusion at which I have arrived is at variance with what seems to have been held in Small v. Bixley, (18 Wend. 514;) but in that case the court must have overlooked the statute. It was there supposed that the right of the defendant to costs, where both parties succeed, tons upon the idea that he stands in the attitude of plaintiff, and hence must succeed in defending an amount of property that would entitle a plaintiff to costs. I cannot think so. True, the defendant in replevin is regarded as plaintiff for certain purposes, such as noticing the cause for trial &c.; but there is no reason for so regarding him on the question of final costs. As has been already said, he is not a volunteer in the litigation, for he must assume the attitude of a defendant, or lose his property which has been wrongfully taken. And I do not see why he should he deprived of the privileges of a defendant, while obliged to assume the responsibilities of that character.

I am of opinion, therefore, that the motion should be granted.

Ordered accordingly.  