Ex parte Beadlestone

*Ex parte Beadlestone. ALBANY, Oct. 1827. Phelps, for 6 cents damages, On appeal from a justice's bond to pay his own cost; to pay his own costs; nor any more than the costs and inclued in the judgment. a Mansfield. [*507] #Ebüjparte BeAdlestone. A at~spio~ of Essex county rendered a judgment for the relator, who was sued by Phelps, for 6 cents damages, and $5 costs. The whole costs of both parties before the justice, as justice's, constable's and juror’s fees, amounted to $7 64. Phelps appealed; but paid the justice only the $5 06, with 75 cents for making the return; and refused to pay the balance of the whole costs accrued, the $2 64. On this ground, the 0. P. were moved by Beadlestone to dismiss the appeal, which they refused to do. A motion was now made for a mandamus commanding them to dismiss the appeal. G. A. Simmons, for the motion. The 50 dollar act, (sess. 47, ch. 238, s. 36,) is, that the party appealing shall pay to the justice the costs of suit, as one condition of the appeal taking effect. The phrase is broad enough to include the costs of both parties; and reason requires such a construction. The statute could never intend to deprive the justice, constable, &e., of their lien for fees which cannot be taxed and included in the judgment. The taxation can be for no more than $5; but if there be no appeal, the principal money is usually collected and paid in to thejustice; and he has a lien upon it for the costs, besides those which are included in the judgment. A suit over against the party is, in this way, saved. By the 39th section, if the appellant recover in the 0. P., the judgment is to include the costs actually paid in the suit below. Unless the party pays his own costs, as well as those of the opposite party, he would be remediless for a part of his expenses. A party may appeal from his own judgment. (4 Cowen, 64.) Yet he must pay costs. E. C. Gross & D. B. M’Neil, contra, insisted that the appellant was bound to pay no more costs than could be levied on the execution. This is what the statute means by the costs of suit. [MAJORITY — * Curia.] * Curia. There are, (we perceive, with the counsel for the relator,) several considerations in favor of the view which he urges: but we think not of such controlling force as to require a different construction upon the words of the statute, costs of suf from what they generally import when used in direct reference to the amount of recovery. Besides ; such a construction prevents uncertainty, and consequent dispute, which would often arise concerning the unliquidated costs. These are a private concern between different persons. They rest in contract. The claim for them may or may not be enforced: but it is in no respect affected by the appeal. We think the party is entitled to appeal without paying his own costs, or those of his adversary, beyond the amount of the recovery. Motion denied. For the regulations of appeals from justices courts, under the New York Code. See Waterman’s Tr., p. 228, et seq.