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insufficient allowance had been made in respect of witnesses' fees; a retaxation was granted. There was, it was said, no pretence that the clerk's receipt was intended as a bar to any right on the part of the defendant to question the correctness of the taxation. It was even held by the learned judge who decided the case, that, under the circumstances, "there could be no objection to the defendants' attorneys receiving what the plaintiffs admitted was their due. The present motion is based upon the supposition that they were entitled to more. I think they were not precluded from making it, by payment of the sum taxed, to their clerk." Of course, applications of this nature are matters resting entirely in the discretion of the court, and each case must depend upon its own peculiar circumstances.

On settling the costs, interest on the amount of the sum recovered, from the time of the verdict or report until the entry of judgment, is, under sec. 310, to be computed by the clerk, and added to the costs of the prevailing party. A calculation of such interest must, of course, be ready against the taxation, in order to its being duly inserted. It is singular that this section is totally silent as to an amount found due by a judge, on his decision, in a cause tried by the court. If the rule, "expressio unius," &c., were to prevail in all its strictness, it might be contended that interest could not be added to an amount so found due; but this would lead to so manifest an absurdity in practice, that the objection can scarcely be anticipated.

The usual notice of taxation, or rather of adjustment by the clerk, includes, as of course, the calculation of interest as above. The reader must, however, be careful not to confound this notice with that of the assessment of damages, on the entry of judgment by default, where the complaint is not sworn to; a proceeding treated of, under its proper head, in the succeeding chapters.

The proper form of the notice of adjustment will be found in the Appendix. It need not, in strictness, be accompanied by a copy of the costs.-Gildersleeve v. Halsey, 3 Sandf. S. C. R. 756; 1 C. R. (N. S.) 126. The more usual and correct practice is, however, to serve such copy; and, on delivering the decision last cited, it was stated that the superior court would direct a rule to be entered to that effect, in future cases. The subject in general, and the form and concomitants of the bill to be taxed, and of the necessary affidavit of disbursements, will be found further considered in a subsequent chapter, under the head of Costs.

The notice having been thus given, the attorney for the prevailing party must attend at the time and place appointed; as, if he omit to do so, and his adversary be present, the notice will, of course, fall to the ground, and, if insisted on, must be renewed for the full period. If, on the contrary, the other side fail to attend, the attorney for the prevailing party may proceed ex parte, and may complete his taxation, after a reasonable delay, at the discretion of the clerk.

In most cases, taxation by the clerk is accepted by the parties as final. His decision is, however, reviewable, on application to a judge of the court, at chambers or otherwise. Where practicable, this review frequently takes place, by the attorneys on both sides going before a judge at chambers immediately, obtaining his opinion upon the particular point in controversy, and then returning to complete the taxation; a most convenient practice, where it can be adopted. If not, that revision may be obtained by means of a motion for a retaxation. This course is admissible under the inherent powers of the court, although no special provision is made by the Code upon the subject.-Whipple v. Williams, 4 How. 28, before cited. See, also, note at 3 C. R. 124; by which it is laid down, in addition, that a motion for this purpose can only be entertained at a special term. This rule is, however, inapplicable to the first district, in which, under sec. 401, the application can unquestionably be made out of court.

The costs having been thus adjusted, and the amount for which judgment is to be entered up determined by calculation, the next proceeding is to complete that entry in due form. The essential requisites of the judgments to be entered, in different cases, and under different circumstances, will be considered in the succeeding chapters; the observations in the present being strictly confined to the formal proceedings for that purpose, as applicable to judgments in general, without distinction as to their peculiar nature or effect.

The attorney for the party prevailing, should always be prepared with the documents necessary to form a proper judgment roll, although, in strictness, this is not his duty, but that of the clerk, who is responsible for the correctness of the entry.-Renouil v. Harris, 2 Sandf. S. C. R. 641; 1 C. R. 125. See, also, a similar principle as to the clerk's responsibility, in Neale v. Berryhill, 4 How. 16; Lynde v. Cowenhoven, 4 How. 327; Duoy v. Hoyt, 1 C. R. (N. S.) 286. It is, however, so important to the regularity of ulterior proceedings that a proper judgment roll should be filed,

that the attorney signing judgment can never safely neglect to see that its proper component parts are all duly included. The almost universal practice is, therefore, for such attorney to prepare and make up such judgment roll in person.

The taxation of the costs being completed, the formal entry of judgment by the clerk, under sec. 280, in a book to be kept by him for that purpose as provided by sec. 279, is, in strictness, the next proceeding. This entry must "specify clearly the relief granted, or other determination of the action." The making of it rests, however, within the peculiar province of the clerk, and is frequently done by him afterwards, at his leisure; though, of course, the parties have, if insisted on, the right to see that it is properly made, as being, as in fact it is, essential to the due perfection of the judgment.

This entry being made, or considered as having been made, the judgment roll is then made up and filed; the component parts of which are thus prescribed by sec. 281:

281. Unless the party or his attorney shall furnish a judgment roll, the clerk, immediately after entering the judgment, shall attach together and file the following papers, which shall constitute the judgment roll.

1. In case the complaint be not answered by any defendant, the summons and complaint, or copies thereof, proof of service, and that no answer has been received, the report, if any, and a copy of the judgment.

2. In all other cases, the summons pleadings, or copies thereof, and a copy of the judgment, with any verdict or report, the offer of the defendant, exceptions, case, and all orders and papers in any way involving the merits, and necessarily affecting the judgment.

By section 373, special provisions are made as follows, in relation to the entry of judgment, in cases where a controversy has been submitted without action under sec. 372, and as to the component parts of the judgment roll under those circumstances.

§ 373. Judgment shall be entered in the judgment book, as in other cases, but without costs for any proceeding prior to notice of trial. The case, the submission, and a copy of the judgment, shall constitute the judgment roll.

It will be seen that, under these provisions, every pleading or proceeding in the cause bearing directly upon the issue decided, must be included in the roll, which thus, in fact, contains a complete epitome of the cause, from its commencement to its termination. In the

previous Codes all orders relative to a change of parties were likewise to form part of the judgment roll, but, on the last amendment, this clause was stricken out. Where possible, the original papers should in all cases be used, and those on the files of the court will, on a request to that effect, be procured by the clerk, for that purpose.

If the opposite party have neglected to file his pleading, he may be compelled to do so, under the provisions of sec. 416.

He is not, however, bound to notify his adversary of his compliance with that order, but the latter must ascertain the fact, by reference to the files of the court.-Duoy v. Hoyt, 1 C. R. (N. S.) 286. See likewise, on the subject of filing pleadings as above, Toomey v. Shields, 9 L. O. 66; Short v. May, 2 Sandf. S. C. R. 639; 3 C. R. 307; and Bennett v. Dellicker, 3 C. R. 117.

If, however, the original papers on either side be not procurable, copies may be used.

In the code of 1849, provision was made, specially enabling a defendant to make use of the copies served on him by the plaintiff, but this provision has now been stricken out, being clearly superfluous. Where amendments have taken place, the amended pleadings only are necessary. The filing of the original and superseded documents will, in this case, be clearly unnecessary and might even be held vexatious, as imposing additional expense, on obtaining a transcript of the judgment record, for the purposes of an appeal, if taken.

If a writ of inquiry, or reference, be necessary for the information of the court, previous to the final entry of judgment; of course the process or order for that purpose, with the return or report thereon, will also form component parts of the roll. See post, chapter IV. of the present book.

To the pleadings and proceedings thus collected, and arranged, as they should be, in due order, must be added the decision of the court, or referees, where given in writing, or an extract from the clerk's minutes of the decision, in the former case, where that decision has been orally pronounced, or of the verdict of the jury, where the trial has taken place in that form.

In the Schenectady and Saratoga Plank Road Company v. Thatcher, 6 How. 226, 1 C. R. (N. S.) 380, it was held that, even where the decision of the court has been given in writing, and has formed part of the judgment roll, a copy of the entry of the judgment made by the clerk, in the judgment book, is also a necessary component part of the former, as being "the only record-evidence

that judgment has been perfected ;" and the judgment roll, in that case, was accordingly held to be defective. This requisite should, therefore, be complied with, in all instances.

It was likewise held, in the same case, that the clerk had erred in attaching to the roll the bill of costs, the notice of adjustment, and the affidavit of disbursements and attendance of witnesses. It was held that these properly constituted no part of the roll. The clerk, under sec. 311, is to insert "the sum of the charge for costs, &c. The amount only is to be inserted, and not the papers necessarily used in ascertaining such amount."

There is, certainly, much force in the argument by which this last view is sustained, as regards the additional expense to the parties, in case of appeal, and the inconvenience of encumbering the record with useless matter. It has, however, been a very usual practice to include the foregoing in the record, and likewise any order for an additional allowance, under sec. 308; and it seems somewhat questionable, as to whether the safer course may not be to continue the latter practice, at all events, if not the former, until the views in the above case be confirmed by additional authority.

To these different papers, when duly brought together, must be added the "Postea," or formal entry of the judgment itself, the forms of which, in each different case, will be considered in the succeeding chapters. The whole of these documents must then be attached together, endorsed, and filed; and, when so filed, they constitute the complete record, which differs little, if at all, from that made up under the former practice, mutatis mutandis. See as to the latter, Kanouse v. Martin, 3 Sandf. S. C. R. 593, 3 C. R. 124.

Under ordinary circumstances, and where ordinary vigilance has been used in obtaining a proper order to stay proceedings, for the purpose of making a case or exceptions, in order to an appeal, or motion for a new trial, those papers will be completed and ready to be included in the judgment roll at the time of its filing. In the event, however, of any negligence on the part of the party applying for a review to obtain a stay in due time, or of a refusal by the judge to grant further time for that purpose, it is competent for the court to order those documents to be annexed to the record at any subsequent period. Renouil v. Harris, 2 Sandf. S. C. R. 641; 2 C. R. 71; Lynde v. Cowenhoven, 4 How. 327. In the Schenectady and Saratoga Plank Road Company v. Thatcher, 6 How. 226,

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