Dodge v. Reed

Tenney, J.

The question in this case is, whether the plaintiff in review is the. prevailing party, and so entitled to his costs by R. S., c. 124, § 10.

In the case of Bruce v. Learned, 4 Mass. 614, the Court say, “it has been the immemorial usage in reviews of actions, in which debts, or damages, or lands, have been demanded, if the plaintiff has failed in recovering his just demand, or has recovered more in the original suit, to consider the party, in whose favor the error has been corrected, the prevailing party, and entitled to his costs.” In the cases of Erving, plaintiff in error, v. Pray, 1 Greenl. 255, and Kavanagh & al., plaintiffs in review, v. Askins, 2 Greenl. 397, the former being a writ of entry, and the latter an action of assumpsit, the same principle was applied.

The case from 4 Mass, was replevin, and in the trial of the original action, and on the review, the defendant obtained verdicts; but in the latter the damages for the taking of the goods by the replevin were reduced. Costs were allowed the defendant, on the ground, that the damages recovered were occasioned by the replevin, and the costs were in defence. The Court made a distinction between the damages for the caption and detention, which were in part the causes of the replevin suit, and the damages to the defendant, arising in consequence of the unlawful replevin, and which had no existence before the writ. If the objects of the suit wholly fail, the plaintiff cannot be the prevailing party, merely by reason of being holden for less damages on the review than in the original action. The Court say, in their opinion, “ the demand of the defendant is founded on the legal process, sued and prosecuted by the plaintiff. Therefore, in the other actions, if the plaintiff reviews, he cannot have costs, unless he supports his demand to more money or land, than the former jury gave him. So if he review in replevin, he cannot have his costs, unless the jury increase his former damages, or find his property in the chattels.”

The action of replevin being a remedy as well for the loss arising from the caption and detention of the goods, as to obtain possession of them, if the defendant, against whom judgment was rendered in the original action, shall review, and a less sum in damages be recovered, he is equally the prevailing party, as he would be, if the reduction in the amount was In an action of assumpsit.

Judgment for the plaintiff in review for his costs of the review.