Walker v. Burnham
New York Supreme Court
Motion by defendant for treble costs. The action was brought to recover the possession of personal property taken by the defendant, a constable, by virtue of a warrant issued by John D. Shaul, colonel of the 39th regiment, for the collection of military fines. Upon the trial at the Otsego June circuit, the plaintiff was non suited for the reason that replevin would not lie in such case.
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Motion by defendant for treble costs. The action was brought to recover the possession of personal property taken by the defendant, a constable, by virtue of a warrant issued by John D. Shaul, colonel of the 39th regiment, for the collection of military fines. Upon the trial at the Otsego June circuit, the plaintiff was non suited for the reason that replevin would not lie in such case. The defendant now moves for treble costs under the militia law, he having obtained the necessary certificate from the judge who tried the cause.
1Opinion of the Court
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 The present statute in relation to costs has not, in my opinion, repealed this statute, as will be seen by reference to the following cases (Calkins agt.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.…
2Cases cited3 opinions
- King v. HavensNew York Supreme Court · 1841
- Fuller v. WilcoxNew York Supreme Court · 1838
- Jermain v. BoothCourt for the Trial of Impeachments and Correction of Errors · 1845
3Cited by1 opinion
- Ehright v. ShalveyNew York Marine Court · 1877