(dissenting). The majority opinion in my view does not adequately state the real case.
Under date of April 14, 1927, plaintiff issued a replevin writ, under which the marshal, on April 15, took possession of the goods then in the defendant’s warehouse. Promptly on April 16, the defendant’s counsel filed a long motion which he described, inaccurately, as a motion in abatement. That document (in substance) asserts that the writ of replevin was not brought in good faith; that when brought the defendant, as plaintiff well knew, claimed no right of possession or title or other right in the goods; that the sole purpose of issuing the writ was to prevent an attachment of said goods under process from the state court; that the goods were in the defendant’s possession on consignment under a contract between plaintiff and defendant, canceled by plaintiff on April 1, 1927; and that thereafter the defendant had repeatedly disclaimed any right or desire to detain them from the plaintiff. The defendant adhered to his view that the replevin proceedings were illegal as well as unwarranted; and, on April 20, refused to appear at the proceedings for approving the bond. But the plaintiff proceeded to have the goods appraised and a surety company bond for $60,- ■ 000 approved at an expense of $600.
Under date of July 18, 1927, the defendant filed an answer, in substance and effect the same as the so-called motion in abatement. The case went to trial, and on evidence — not disclosed in this record — the jury found that at the time the writ was issued the defendant was wrongfully detaining the goods. Thereupon, the court ordered judgment for the plaintiff, with one dollar of damage.
This miscalled motion to abate the writ was filed before any proceedings had been taken to appraise the goods or issue any bond. It should have been treated as an answer on the merits. It showed clearly that there was no real controversy between the parties and no occasion for a writ of replevin, much less for a bond — which is required entirely for the defendant’s security in case plaintiff should fail to maintain the allegations in its writ. It amounted to a waiver, both of the bond and of any claim of right in the goods, then in the possession of the marshal. All subsequent proceedings were utterly needless and futile. There was no occasion to appraise the goods and to give a bond to secure defendant for rights whieh he had formally waived and disclaimed on the record.
But, giving full force and effect to the jury’s finding of illegal' detention, the only “amount in dispute” presented by the pleadings was the damage done by the detention— one dollar. The case, therefore, falls clearly under R. S. § 968, title 28, § 815 U. S. C. A., whieh reads:
“When, in a district court, a plaintiff in an action at law originally brought there, or a petitioner in equity, other than the United States, recovers less than the sum or value of $500, exclusive of costs, in a case whieh can not be brought there unless the amount in dispute, exclusive of costs, exceeds said sum or value; or a libelant, upon his own appeal, recovers less than the sum or value of $300, exclusive of costs, he shall not be allowed, but, at the discretion of the court, may be adjudged to pay, costs.”
The case is governed by this statute, whieh was intended to penalise the bringing of petty eases in the federal court. Van Siclen v. Bartol (C. C.) 96 F. 796; 28 U. S. C. A. § 815, note 3, and eases cited. The provision is mandatory.
The issue is made by the pleadings, not by the allegations of the writ, alone; both the so-called plea in abatement, and the answer on the merits, disclaimed any title or other right in the goods. The only issue tried or triable on the pleadings was illegal detention; the only “amount in dispute” was the damage from such detention — one dollar.
Replevin, under our modem statutes, includes the common-law actions, both of re*220plevin and detinue. This ease was, on the pleadings, an action of detinue only. 34 Cyc. pp. 1353, 1356, 1395.
None of the eases cited in the majority opinion sustain the ruling that, on such pleadings as are here presented, the value of the property determines the application of the statute as to costs. In Marden v. Starr (C. C. A.) 107 F. 199, the issue was title to $4,000 of property; Squire v. Robertson (C. C. A.) 191 F. 733, was an action for foreclosure, not at all in point; Way v. Clay (C. C.) 140 F. 352, was a District Court ease, and involved ejectment; and Smith v. Adams, 130 U. S. 167, 175, et seq., 9 S. Ct. 566, 32 L. Ed. 895 is an authority against the proposition.
The main function of pleadings is to determine the “amount in dispute” between the parties, and to define the issue. The ruling of the majority ignores this firmly settled principle. ■
But if the plaintiff were entitled to costs, it is not entitled to $600 for a surety company premium for an unneeded bond. This ruling utterly ignores that the defendant had, before the goods were appraised and the bond given, waived any right he had to such security. Moreover, I find in the statutes or in established usage no warrant for allowing such an item as costs.
It does not, in my view, fall under the ruling made in the Governor Ames Case (C. C. A.) 187 F. 40. The ruling allowing lids item seems to me "purely legislative and not judicial. Compare Ex parte Peterson, 253 U. S. 300, 40 S. Ct. 543, 64 L. Ed. 919.
The other large item allowed as costs was $650.80, for expenses of packing and removing the replevied goods from the defendant’s warehouse. This item was, in my opinion, properly disallowed by the clerk, on the ground that the court had ruled that the defendant owed no duty to pack up the plaintiff’s goods for shipment. The goods were on the defendant’s premises when, either "rightfully or wrongfully, the contract between plaintiff and defendant was canceled, and it plainly rested on the plaintiff to remove the goods from the defendant’s premises. The attempt to impose this expense (grossly excessive in amount) on the defendant, by causing the work to be done by the employees of the deputy marshal in possession under the replevin writ, is an abuse of process.
It is plain that the only reason why this writ of replevin was brought was to avoid attachment by the defendant on a suit against the plaintiff for alleged breach of the contract. As soon as the property was in the hands of the United States marshal, it was, of course, not subject to attachment by the state process. Freeman v. Howe, 24 How. 450, 16 L. Ed. 749.
The argument of defendant’s counsel, not strictly a part of the record, that he was negotiating with plaintiff’s counsel for the acceptance of service on a writ to be brought by defendant, is, by fair implication, shown to be correct. He had a right to do this. That he should now be, assessed for over $1,400 of costs for merely negotiating concerning a right which, for aught that appears, he had, is, in my opinion, one of the grossest abuses of legal process I have ever encountered. I decline to be a party to its approval.