Roberts agt. Randel. Code, and the party could be held to bail with the same effect in trespass. The point was therefore of no practical importance. Was the assumption of the judge in the cases in 1st Hill, warranted by the law as it then existed? Previous to the Revised Statutes replevin could not have been maintained in those cases. . Although learned judges, by way of illustration, frequently said before the Revised Statutes, that replevin would lie wherever trespass could be brought, they did not intend to say that they were concurrent remedies in all cases. Wherever trespass would lie, and the goods were possessed by the defendant, replevin could be maintained; and this was all that those judges intended to assert. The same remark might be made as to most of the instances in which, since the revised statutes, judges have said that replevin would lie wherever the party could maintain trespass or trover. We repeat, that before the revised statutes, there was no such thing in this state as replevin against a party, after he had entirely divested himself of the possession and control of the goods claimed; except in the single case of distress for rent where the distrainor had proceeded fraudulently or contrary to the statute permitting a replevin within five days. (By fraud in the procedings, we mean some act of the distrainor analagous to the driving of a distress out of the hundred or shire in England.) The action was purely possessory. It sought the specific goods, and was fruitless unless the goods were seized, or other goods taken from the defendant in withernam in the excepted case just stated, as a substitute for those distrained, or the distrainor having eloigned the latter beyond the reach of the sheriff. The judgment was for the property already seized and restored to the plaintiff, with damages for its detention. There was no judg ment for its value, or for any other damages. Hence the action always ensued immediately on the taking of the property. It was even contended, on distresses for rent (which at that period were the origin of most of the actions of replevin), that the suit could not be brought after the five days within which the tenant was permitted to make a replevy, although it were commenced before Roberts agt. Randel. an actual sale of the distress. We refer, for the state of the action before the Revised Statutes, to Co. Litt. 145, b.; Bacon's Abr. Replevin, A.; 2 Dunlop's Pr. 872, 880; Graham's Pr. 55, 726, 1st ed.; and Jacob vs. King, 5 Taunt. 451. The Revised Statutes extended the action of replevin, to cases where the original taking of goods was lawful and they were wrongfully detained; and it is described to "be brought for the recovery thereof, and for the recovery of damages" for the unjust caption or detention. The form of the writ is prescribed thus: "Whereas A. B. complains that C. D. has taken and does unjustly detain (or 'does unjustly detain,' as the case may be);" and it commanded the sheriff, on receiving security for a return of the goods, if a return should be adjudged, &c., to replevy the goods and deliver them to the plaintiff, and to summon the de fendant; and if he could not find the goods, then to take the body of the defendant &c. The statute next prescribed the manner of executing the writ, by delivering the possession of the property to the plaintiff (2 R. S. 522, &c., § 1, 6, 8, 10). “If the property described in the writ, have been removed or concealed so that the sheriff can not make the delivery thereof," he was required to arrest the defendant, who was thereupon to give bail as in personal actions (Ibid. § 11, 12, 22 to 27). This was a substitute for the capias in withernam of the common law, and was extended to all cases of replevin. The declaration (§ 36,) is again carefully limited to a detention existing at the commencement of the suit. The whole statute, without citing it more at large, shows that the action was still a possessory action against personal property, extended to cases where before, even if the goods were in the defendant's custody, trover or detinue were the only remedies. By the Revised Statutes several valuable changes were made in the practice in replevin, besides the substitute of the arrest before mentioned; among others, a judgment for the value of the property and damages, where the plaintiff has not obtained the goods by the replevin. The language of the eleventh section, before cited, taken in connection with the nature of the action Roberts agt. Randel. as declared by the first section and the form of the writ and the declaration, was plainly limited to a removal of the property made to avoid the service of the writ. It seems to us entirely incongruous to make the statute say, when the writ is given only for a present detention, that the party shall be arrested under it, for a disposal of the property made before it was issued. We do not intend to speak of removals in fraud of the law when a writ was expected. The revisers in proposing the changes in replevin, say it has been extended so as to make it a substitute for detinue, and a concurrent remedy with trespass and trover, in all cases of the unlawful caption or detention of personal property. We suppose the latter expression was used by the revisers, in the same sense that it was before that time used by judges, in comparing replevin with trespass, as we have already mentioned. We do not imagine that the revisers intended to say that by their proposed change, replevin could be brought against the bailee of a horse, a year after he had sold the horse to a stranger. In fine, we are fully convinced, that the Revised Statutes did not warrant the bringing of replevin in a case like the one before us, and that the assumption to that effect in the cases cited from 1st Hill, was unfounded. Such being our conclusion, and all agreeing that the "claim and delivery of personal property" under the code, is a substitute for replevin as it before existed; it fortifies our opinion founded upon the Code itself, that this provisional remedy can not be maintained against a party who has not in fact or in law the possession or control of the property claimed. 66 Some stress was laid on the addition in the Code of the words disposed of," to the removal or concealment mentioned in the eleventh section of the Revised Statutes. We think this was intended to provide for the event of the defendant's selling or otherwise parting with the proper in fraud of the action; as for example, after the action was commenced and before service by the sheriff. It can not be supposed that those words were designed to change the whole nature of the remedy substituted for Collomb and others agt. Caldwell and others. replevin, and to give it a scope vastly wider than its original ever had obtained. Upon the whole, we entertain no doubt that the plaintiff has misconceived his remedy, and that an order for arrest under the third subdivision of section 179 of the Code, can not be made in a case like this. The order appealed from must be affirmed. (a.) (a.) The case of Van Neste agt. Conover (5 How. Pr. R. 148), was not known to the court until after this decision. It would not probably have affected the conclusion to which the court arrived. 5 How. 336-FOLLOWED, 6 How. 9, 10. SUPREME COURT. COLLOMB and others agt. CALDWELL and others. Where two defendants appear and defend separately, and each demurs to the complaint, and both demurrers are allowed with leave for the plaintiff to amend on payment of costs; each defendant is entitled to costs, as follows; Proceedings before notice of trial, $5.00. 2. Subsequent proceedings before trial, $700. 3. For the trial of the issue of law, $12:00. A motion for a readjustment of costs should be made before payment thereof and without the loss of a term, or some reasonable excuse must be shown. Saratoga Special Term, January 1851. WILLARD, Justice.-This is a motion for a retaxation of costs in the nature of an appeal from an adjustment thereof made by the clerk of Montgomery county, under § 311 of the Code. This adjustment or taxation was made by the clerk, upon notice to the plaintiffs from the defendants, on the 1st day of November last. The costs were allowed to the defendants, who severally demurred to the complaint; the demurrers being allowed, and the plaintiffs having leave to amend on payment of the costs of the demurrers, within twenty days. The plaintiffs paid the costs voluntarily within the time. Since the taxation, and indeed, since the payment, there have been several special terms, at which this motion might have been made. Rowell agt. McCormick and Belden. I. The defendants having appeared and defended severally, were each entitled to a bill of costs. II. The costs were correctly adjusted. The costs contemplated by the rule were those incidental to the demurrer. They embrace proceedings before notice of trial ($5.00); that is the drawing and the copies of the demurrer. 2. The subsequent proceedings before trial ($7.00); this is what was formerly comprised under the head of brief and points. 3. For the trial of the issue of law ($12.00). This, under the former practice, was covered by the counsel fee on argument. In some cases it would be more in some less than the corresponding charge under the Code. III. The plaintiffs should have moved at an earlier day, or be able to give some excuse for the delay. They should have moved before payment of the money. They paid without objection. The motion must be denied with seven dollars costs to each of the defendants, Mitchell and Reed. 5 How. 337-Contra, 8 Duer 669; 5 How. 310; 14 d. 430. SUPREME COURT. ROWELL agt. MCCORMICK AND Belden. Where an attorney signs his name and " place of residence" to papers; the ser- It seems, that by § 405, the time to appeal (30 days), can in no case, be en- Judgment was rendered at Monroe Special Term, Oct. 1850. a special term on the 27th day of June favor of plaintiff against defendants. Notice of judgment was received by defendants' attorneys on the 1st day of July 1849. On the 29th July the defendants filed the requisite undertaking with a view to an appeal. Notice of the appeal and of the undertaking, with a copy of the undertaking, was mailed at the |