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$ 496. Several actions brought on a single cause of action shall carry costs in but one.

When several actions are brought on one bond, undertaking, promissory note, bill of exchanye, or other instrument in writing, or in any other case for the same cause of action, against several parties

who might have been joined as defendants in the same action, no . costs shall be allowed to the plaintiff in more than one of such

actions, which may be at his election, if the party proceeded against in the other actions were, at the commencement of the previous action, openly within this State; but the disbursements of the plaintiff shall be allowed to him in each section (action).

N. Y. Code, $ 304.

1. Where an action has been commenced against several defendants, and there has been a judgment in their favor, they are not all entitled to recover separate costs to the amount allowed by the act, but can only recover jointly, as though there had been but one defendant. Rice v. Leonard et al., 5 Cal. 61.

2. Possibly as the entry of such several judgments in ejectment increases the costs, it would be ground for retaxing or apportioning them. Liek v. Stockdale, 18 Cal. 219.

See post, $ 495.

§ 497. Defendant's costs shall be allowed, of course, in certain

cases.

Costs shall be allowed, of course, to the defendant, upon a judgment in his favor in the actions mentioned in section four hundred and ninety-five, and in a special proceeding in the nature of an action.

N. Y. Code, $ 305.

Sec. 493. In other actions than those mentini 2

no costs shall be allowed in action for the r.00* money or damages whea the plaintiff recorers lean :: tbree hundred dollars, nor in an action to t

$ 498. Costs in actions not mentd section 105, costs may be allowed, et not and

lowed, may be parties, and ninety-five; costs not allowed, i same or adverse sides, in the discretion of the C dred dollars.

! In other actions than those men, the property is less than three hundred dollars.

the possession of personal property, when the radze and ninety-five, costs may be allowed, or not; and if allowell, may be apportioned between the parties, on the same or adverse sides, in the discretion of the Court; but no costs shall be allowed in an action for the recovery of money or damages when the plaintiff recovers less than two hundred dollars, nor in an action to recover the possession of personal property, when the value of the property is less than two hundred dollars.

N. Y. Code, $ 306.

1. In an action to abate a nuisance, damages are only an incident to the action, and the failure to recover them does not affect the question of costs.

Hudson v. Doyle, 6 Cal. 101.

2. In this case-suit for damages to a mining claim and for injunction-plaintiffs had judgment for one hundred dollars and costs, taxed at $- -, a perpetual injunction being granted also. After the judgment was entered, plaintiff's moved that costs for the trial be allowed. Motion denied, except as to the costs accrued by reason of the injunction granted : Ileld, that this is a case where the allowance of costs is in the discretion of the Court below. Esmond v. Chew, 17 Cal. 336.

3. Where a first attachment against an insolvent is set aside as fraudulent, in a suit brought by a subsequent attaching creditor, to which various other attaching cre litors, prior and subsequent, are parties, the prior attachments become liens, in the nature of legal estate vested in the Sheriff' for the benefit of the creditors; plaintiff's costs, disbursements and counsel fees, however, should first be deducted from the fund before distribution. Patrick v. Montader, 13 Cal. 444.

$ 499. When the several defendants are not united in interest, costs may

be severed. When there are several defendants in the actions mentioned in section four hundred and ninety-five not united in interest, and making separate defenses by separate answers, and the plaintiff fails to recover judgment against all, the Court shall award costs to such of the defendants as have judgment in their favor.

N. Y. Code, $ 306.

1. Where two persons are made defendants, and sued as joint makers of a promissory note, and they answer separately, and one of them pleads infaney as a defense, they thenceforth cease to be “united in interest,” within the meaning of those words as used in section three hundred and six of the Code. (Slocum v. Hooker, 13 Barb. 536.) So far from being united in interest, the fact that they severed in their defense, and one rested on his personal exemption, rendered their interests diverse and antagonistic. Butler v. Vorris, 1 Bosw. 329.

2. In such case, the Judge may on the trial, in his discretion, allow the plaintiff to discontinue, without costs, against the defendant establishing such a personal defense. Id.

$ 500. Costs discretionary with the Court in certain cases.

In the following cases the costs of an appeal shall be in the discretion of the Court:

1st. When a new trial is ordered; 2d. When a judgment is modified. N. Y. Code, ý 306.

1. Where a judgment was affirmed in part and reversed in part, the respondent was allowed his costs in the Court below, but was required to pay the costs of the appeal. Cole v. Swanston, 1 Cal. 51.

2. The costs on appeal, or properly the costs in this Court, and the cost of making up the appeal in the Court below, including the costs of making out the transcript and the costs of the former trial, abide the event of the suit. Gray v. Gray and Eaton v. Palmer, 11 Cal. 341.

3. Where the judgment below is reversed on appeal and a new trial had, the costs of the first trial are part of the final bill of costs. Visher v. Webster, 13 Cal. 58.

4. The judgment in this case being for too much interest, was modified by the Supreme Court in that particular, and then permitted to stand, at appellant's costs,

on the principle that where the Supreme Court modifies the judgment below for an apparent error, which appellant might have had corrected below, on motivih, respondent will not be taxed with costs. Cossin v. Marshall, 18 Cal. 689.

5. Appellant made to pay costs, although the judgment is reversed. Renifi [. Cynthia, 18 Cal. 669.

6. Judgment may be affirmed as to a mandamus, but reversed as to costs. McDougall v. Roman, 2 Cal. 80.

7. Where in ejectment the facts found by the Court authorized a judgment for possession, but not for damages, the judgment being for possession and damages was affirmed in the Supreme Court, upon respondent's remitting the daniages and paying the costs of appeal. Doll v. Feller, 16 Cal. 433.

8. Case where each party was made to pay his own costs on appeal. Bradbury v. Barnes, 19 Cal. 120.

9. Case where costs of motion in Supreme Court were not allowed. Sain v. Naglee, 19 Cal. 127.

10. Case where appellant paid costs in Supreme Court. Jungerman v. Bone, 19 Cal. 354.

11. Where a jndgment of the Court was incorrect in part, the Appellate Count ordered the Court below to modify its judgment accordingly, and the appellants recovered the costs of their appeal. Welch v. Sulliran, 8 Cal. 512.

12. If no motion be made in the Court below to correct a clerical error disclosed by the pleadings, the error will be corrected in the Supreme Court at appellant's

Tryson v. Sutton, 13 Cal. 491. 13. If any one or more of the parties desire a modification of the judgment as to costs, the proper application should have been made within the ten days aliowel for filing a petition for a rehearing. Gray v. Gray, 11 Cal. 341.

14. Defendants below and appellants here, on the main question, to wit: the injunction, required to pay costs in this Court on both appeals. Jungerman Y. Bovee, 19 Cal. 355.

15. Where a case is remanded for further proceedings, and costs awarded in this Court in general terms, the costs on appeal only are included, leaving the costs of the former trial to abide the event of the suit. . Gray v. Gray, 11 Cal. 341.

16. See post, \ 665, as to execution for costs on filing the remittitur.

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$ 501. [1853, 1855.] Repealed.

$ 502. [1853, 1855.] Repealed.

$ 503. [1853, 1855.] Repealed.

$ 504. Referees' fees.

The fees of referees shall be five dollars to each for every day spent in the business of the reference; but the parties may agree, in writing, upon any other rate of compensation, and thereupon such rate shall be allowed.

§ 505. Continuance, costs may be imposed as condition of.

[1855.] When an application is made to a Court or referee to postpone a trial, the payment of costs occasioned by the postponement may be imposed, in the discretion of the Court or referee, as a condition of granting the same.

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$ 506. Costs when a tender is made before suit brought.

When, in an action for the recovery of money only, the defendant alleges in his answer that before the commencement of the action he tendered to the plaintiff the full amount to which he was entitled, and thereupon deposits in Court, for the plaintiff, the amount so tendered, and the allegation be found to be true, the plaintiff shall not recover costs, but shall pay costs to the defendant.

1. Evidence of waiver of tender by opposite party is competent, and sufficient to support the averment of tender. Holmes v. Holmes, 5 Seld. 525.

2. The answer must aver a readiness still to pay the tender; it is an essential part of the plea. Kortright v. Cady, 23 Barb. 490; 5 Abbott, 358.

3. It is very doubtful if a tender can now be made after suit brought, unless in the forin of section three hundred and ninety, an offer to take judgment. Thurston v. Marsh, 14 How. Pr. 572.

$ 507. Costs in action by or against an administrator, etc.

In an action prosecuted or defended by an executor, administrator, trustee of express trust, or a person expressly authorized by statute, costs may be recovered as in action by and against a person prosecuting or defending in his own right; but such costs shall, by the judgment, be made chargeable only upon the estate, fund or party represented, unless the Court shall direct the same to be paid by the plaintiff or defendant, personally, for mismanagement or bad faith in the action or defense.

N. Y. Code, $317.

1. Executors and administrators are individually responsible for costs recovered against them in every case; but they shall be allowed them in their administration accounts, except when it appears that the action has been prosecuted or resisted without just cause. Hicox v. Graham, 6 Cal. 169.

2. The provisions of 2 Revised Stat. (N. Y.) 90, 41, exempting executors and administrators from costs, contemplates actions commenced against such parties, and do not apply to an action commenced against the decedent, in his lifetime, and continued by an order of the Court, under section one hundred and twenty-one of the Code, against the representatives. In such case, under section three hundred and seventeen of the Code, the adverse party may, on prevailing, recover costs of the action from the representatives. Lemen v. Wood, 16 How. Pr. R. 285.

3. The fact that the claim was prosecuted with unreasonable haste, justifies the executor in resisting it. Buckhout v. Iiunt, 16 How. Pr. R. 407.

4. Where it appears that the M. and F. Bank, although plaintiff's in one of the judgments upon which supplementary proceedings were instituted, which resulted in the appointment of the plaintiff as receiver, were never in fact concerned in such supplementary proceedings, nor instrumental in obtaining the appointment of the receiver, nor in any way connected with, or authorizing or directing the commencing or prosecution of a suit brought by him: Ileld, that the bank could not be charged with the costs of the action. 1. The bank was not the real party in interest in such action, although if anything had been collected it must have inured to their benefit. 2. They were not the party represented by the receiver, within the meaning of section three hundred and seventeen of the Code. It is only as against the debtor that the receiver or an assignee is entitled to represent the creditors; and the creditors are not liable for costs of his action, without some special authority or interference on their part in respect to his bringing the action. McHarg v. Donnelly, 27 Barb. 100.

5. To entitle the plaintiff to charge the executor or administrator with the costs of an action, he must establish to the satisfaction of the Court: first, that the demand was unreasonably neglected; or second, that it was unreasonably re-ista; or third, that the defendant refused to refer the matter in controversy to thine dis interested persons (pursuant to the provisions of 2 Rev. Stat. 30, $ 36). It is a complete answer to any suggestion of unreasonable neglect to say that the demand was exhibited to the executor thirty-four days from the time of issuing the letters, and was prosecuted fifteen days after its presentation. Buckhout v. Hlunt, 16 Hox. Pr. R. 407.

6. If on the trial the executor materially reduced its amount, his resistanre of the claim is not to be deemed unreasonable. (Roberts v. Ditmaus, 7 Wend. 522; Carhart v. Blaisdell, 18 Id. 531 ; Comstock v. Olmstead, 6 How. Pr. R. 79; Bullut v. Bogardus, 1 Den. 276); Buckhout v. Ilunt, 16 How. Pr. R. 407.

$ 508. Costs in a review other than by appeal.

When the decision of a Court of inferior jurisdiction in a special proceeding is brought before a Court of higher jurisdiction for a review in any other way than by appeal, the same costs shall be allowed as in cases on appeal, and may be collected by execution, or in such manner as the Court may direct, according to the nature of the case.

$ 509. Costs paid on the commencement of an action.

[1862.) On the commencement of an action, the plaintiff, and on the filing of notice of appeal from a final judgment, the appellant, shall pay to the Clerk three dollars, to be applied to the payment of the salary of the Judge of the Court in which the payment is made. Each Clerk shall keep a true and accurate account of all moneys 80 received, and shall pay over the same at the end of each month to the Judge of such Court, taking duplicate receipts for each payment, one of which shall be filed by the said Clerk in his office. On the first day of each month, the said Clerk shall deliver to the Treasurer of the county an account of all sums received, specifying the cases in which received, and of all sums paid out. At the same time, a like account shall be made out and forwarded by such Clerk to the Controller of State of the sums paid in to the respective Courts, and of the sums paid out, with the other receipts of said Judge therefor. It shall be the duty of the District Attorney, at the commencement of each month, to examine the books of said Clerk, and if found correct, he shall make and execute a certificate to such Controller to that effect. In paying the salary of any of the said Judges, the Controller shall deduct the amount paid to such Judge, as shown by the receipt of such Judge.

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