#### Fuller *vs.*Wilcox.

NEW-YORK,

May, 1838.

A party sued in a justice’s court as a public officer is entitled to double costs; and if the fact of his being so sued does not sufficiently appear from the pleadings, the justice may, before rendering judgment, inquire in the presence of the parties, into the defendant’s right to such costs.

Where judgment was rendered for double costs to thaeamount of $11,56, the court in support of the judgment intended that a portion of the costs must have consisted of charges for the attendance of witnesses from a foreign county ; to authorize the reversal of a justice’s judgment it must affirmatively appear that an error has been committed. Besides, the statute forbids a justice’s judgment tobe reversed on account of any feeshaving been improperly allowed.

Error from the Jefferson common pleas. Wilcox sued Fuller in a justice’s court, and declared against the defendant for damages for taking and selling two cows contrary to law; 2. for taking and selling an unreasonable quantity of properly over and above any demand he had against the plaintiff; 3. for taking and selling *on a warrant for the collection of a school tax*a greater amount of property than was necessary to pay the tax, to wit, two cows, when one was sufficient. After issue joined, adjournment and venire, the parties appeared on the adjourned day, and the plaintiff withdrew his suit—“ *Whereupon*[the justice says in his return] the defendant claimed judgment for *double costs*against the plaintiff; whereupon; after hearing the proofs and allegations of the defendant on his motion for double costs, I forthwith did render judgment in favor of the defendant for double costs, $11,56.” Wilcox brought a *certiorari*to the common pleas, where the judgment of the justice was *reversed.*Fuller now brings error.

*J. Clarke,*for plaintiff in error.

*R. Lansing,*for defendant in error.

*By the Court,*

Bronson, J.

It may fairly be inferred from the declaration that Fuller was sued for an act done by him as *apublic officer.*But if that fact was not sufficiently admitted by the pleadings, I see no objection to the *352course which was pursued by the justice, of proceeding immediately in presence of the parties to inquire into the defendant’s right to double costs.

When the plaintiff withdrew his action, it was the duty of the justice to render judgment against him for costs. 2 R. S. 246, § 119,124, 126. If the action was brought against Fuller for an act done byjiim as a *public officer,*he was entitled to double costs—or rather, “ the amount of his taxed costs, and one half thereof in addition.” 2 R. S. 617, § 24. *Wales*v. *Hart,*2 Cowen, 426.

But it is said that the costs could in no case exceed $5, or at the most $7,50. The language of the act as to costs *injustice’s courts*is—“ the whole amount of all the items of such costs, except charges for the attendance of witnesses from another county, shall not, in any case, exceed five dollars.” § 126. This provision is wholy independent of that allowing double costs. It only means that the whole amount of all the items of costs, as taxed by the justice, shall not exceed $5. It does not preclude him, where the action is against a public officer, from adding one half to the taxed bill, although the aggregate may in that case exceed $5. This was virtually decided in the case of *Wales*v. *Hart.*The justice must proceed as is usual in courts of record, and tax the defendant’s costs according to the rates prescribed by the fee bill: with only this difference, that the whole amount of taxation for all the items must not exceed a specified sum. Then comes the statute, which seems equally applicable in" all courts, and provides that the defendant “ shall recover the amount of his taxed costs, and one half thereof in addition.”

The justice gave judgment for $11,56. If he followed the rule already mentioned, he must have taxed the items at $7,71. The taxation may exceed $5, where there are charges for the attendance of witnesses from another county. § 126. They are severally entitled to 25 cents for every day’s actual attendance. § 228. The costs might amount to a sum equal to that at which they were taxed by the justice. But it is said that the judgment was erroneous, because it does not appear that there were any foreign wit-*353
      **299’, nesses, or that the justice had any right to tax so large a bill. I do not so understand the rule. Before a judgment can be reversed it must appear afflrrnativel~y that the justice erred. ~Fhe return does not show what items were allowed or how the bill was made up. If the plaintiff was not satisfied with it, he should have procured a further return. Wilson v.

But there is another answer to this objection. The statute expressly provides, that no judgment shall be reversed “ on account of any fees having been improperly allowed by a justice.” § 184. If judgment' is rendered “ for a greater amount of costs than is allowed by law, or for any item of costs or fees improperly,” the party who has paid it has a remedy by action. § 230. The common pleas erred ; and their judgment must be reversed, and that of the justice affirmed.

Ordered accordingly.