Davis v. Cooper

By the Court,

I do not understand that the statute giving double costs to public officers when sued for an act done by such officers, or for an omission to do any act which it was their official duty to perform, has ever been held to apply to suits in equity. The statute itself rebuts the idea that it was intended to apply to suits in equity. (2 R. S. 617, § 25. ,3 id. 908, § 4, 5th ed. 2 F. Y. Stat. at Large 640, § 24.) This statute was incorporated into the revised statutes, and must be construed by the light of the then surrounding circumstances when we had a court of chancery, with jurisdiction in equity, and the common law courts which had jurisdiction solely of common law actions. And no lawyer of that period can have forgotten that actions at law and suits in equity, were the common parlance of the profession ; and no solicitor of that period ever thought of calling a suit in chancery, ah action in equity. It is only necessary to read the sections 25 and 26, to see that they *378have no application to suits in equity. The 25th section says, “ in the following actions, if judgment be rendered for the defendant upon verdict, demurrer, nonsuit, non pros; or discontinuance by the plaintiff or otherwise, in any action, certiorari, writ of error, &c. such defendant shall recover the amount of his taxed costs and one half thereof in addition. (2 B. S. 617, § 25.)

Mow all these expressions apply to proceedings in common law courts, and' none of them to a suit in equity. “Shall recover judgment ” as contradistinguished from a “ decree in equity.” All our statutes of that period speak of the final determination of a suit in equity as a decree, and not a judgment, and then the expression “inactions, certiorari, writ of error,” &c. is only applicable to proceedings in a common law court, and then the very expressions in the first subdivision, as to the matters for which double costs are allowed a public officer when he defends, are wholly inapplicable to an injunction suit restraining such officer from doing certain acts of an official character.

This section only gives him double costs when he is sued for an act done, or for omission to do an act which it was his official duty to perform. A suit in equity to restrain-him from doing such act is not within the statute at all. The 26th section strengthens this construction when it declares that the counsellors and attorneys who have rendered services in the action for the defendant, shall only receive single costs, and that the double costs shall belong to the party. The expression counsellors and attorneys, instead of solicitors, shows that the legislature were speaking of actions at law, instead of suits in equity. The courts have been disposed to • give á strict construction to this statute. It was held in The People ex rel. Morris v. Adams, (9 Wend. 464,) that a defendant against whom an information in the nature of a quo warranto is filed, is not entitled to double costs, although judgment 'be rendered for him. It *379was held in Taaks v. Schmidt, (25 How. Pr. 341,) that this statute has no application to suits in equity.

The orders appealed from must he reversed, with $10 costs in each case, and a re-adjustment of the costs ordered in each case, in which the clerk will strike from each of the bills of costs, all charges for double costs,

Mason, Balcom and Board man, Justices.]