jected to the certificate and return, as a double charge for the same service; and to the charge for serving the notice, as being a part of the duty included in serving the summons, and, if not, then that no fee is provided for it by law.

After laying down that no specified fee was payable in respect of the service of the notice, the court said it appeared to be "a reasonable disbursement which ought to be allowed to the plaintiff. Whether the service be made by the sheriff, or by any other person, is unimportant." When made by the former, the compensation for it is not allowed as sheriff's fees. It is given for an unofficial act, which could be done by any other person equally as well. The amount of this compensation, we think, in analogy to the fee formerly allowed by statute for the same service in the late court of chancery, should be thirty-seven and a half cents; and that sum will be taxed in future in this court, when shown to be a necessary and reasonable disbursement. No charge for the certificate of service will be allowed. It ought to be, and usually is, included in the certificate of the service of the summons; but, if separately made, it will be paid for in the allowance for serving the notice.

The fees of witnesses, are prescribed as follows by sec. 8 of c. 386, of laws of 1840. (2 R. S. 734, 3d edition.)

"For each witness, fifty cents, for each day while attending any court or officer; and if the witness resides more than three miles from the place of attendance, traveling fees at the rate of four cents per mile, going and returning." A witness is, therefore, entitled altogether to eight cents, in respect of every mile of actual distance, between his place of residence and the place of trial, when such distance exceeds three miles, as above. The distances actually traveled must be stated in the affidavit of disbursements, or the charge cannot be allowed.-2 R. S. 653; Schermerhorn v. Van Voast, 6 How. 458; 1 C. R. (N. S.) 400.

The fee of the witness, and his mileage, must be paid to him on serving the subpoena, or his attendance cannot be enforced, sec. 2 R. S. 400, c. 42. He cannot be called upon to refund, unless he fail to attend the court without reasonable cause, and the payment will be properly chargeable as a disbursement, although the cause be subsequently settled, or put off.-Ford v. Monroe, 5 How. 204; 10 L. O. 155. In that case, the witness being excused from attending, the distance traveled could not, of course, appear upon the affidavit of disbursements, though the distance on which the payment was calculated ought, it was held, to be shown.

Where a witness was subpoenaed at a late hour on the night before the trial, and arrived in court on the next morning, in time to have been sworn, but after the cause had been postponed, it was held he was entitled to his fees.-Clarks v. Staring, 4 How. 243.

In the same case, it was held that when a witness is subpoenaed at his temporary residence or place of business, attends in consequence, and then returns, he is entitled to mileage in reference to the distance so traveled, without regard to the place of his permanent residence. In Mitchell v. Westervelt, 6 How. 265, affirmed 6 How. 311, it was held that a witness was similarly entitled to his traveling fees, from his place of business, to the county where his family resided, he having actually traveled for that purpose, and immediately returned.

No fee can be allowed in respect of the attendance of a party in interest, and whose testimony, therefore, was inadmissible at the trial.-Schermerhorn v. Van Voast, 5 How. 458; 1 C. R. (N. S.) 400.

In Hare v. White, 3 How. 296, it was decided that a fee paid to counsel on taking the testimony of a witness de bene esse, was not a disbursement chargeable by statute, against the unsuccessful party, and could not, therefore, be allowed.

The decisions of the clerk in respect of any allowance as above, are reviewable by the special term, on application. V. Whipple v. Williams, 4 How. 28, above cited, and see this subject heretofore considered in the chapter as to proceedings between trial and judgment.

The clerk's fee on entering the judgment belongs to him, and he has a right to refuse it. His refusal to allow such fee forms, therefore, no ground for a retaxation.-Schermerhorn v. Van Voast, 5 How. 458; 1 C. R. (N. S.) 400. The fees of one shilling each in New York and Albany, and two shillings each elsewhere, paid to the jurors on the trial of an issue of fact, will of course be included in the disbursements.-V. 2. R. S. 643, 644.

Where interlocutory costs, incurred pending the action, have been ordered to abide the event of the suit, or where such costs have been theretofore granted to the losing party, and have not yet been enforced; such costs may, of course, be included by the clerk in his taxation, and allowed, either as matter of additional charge on the one hand, or of set-off on the other; and, in the latter case, the balance only will be awarded to the prevailing party on the final adjustment. The form of a bill of costs adapted to the usual

contingencies of a contested suit, will be found in the Appendix. Of course this precedent will not be applicable to all cases; but, where inapplicable, the necessary corrections will be easily made. The fees payable to the clerk are thus prescribed by Sec. 312: § 312. The clerk shall receive, on every trial, from the party bringing it on, one dollar; on entering a judgment, by filing transcript, six cents; on entering judgment, fifty cents; except in courts where the clerks are salaried officers, and in such courts one dollar.

He shall receive no other fee, for any services whatever in a civil action, except for copies of papers, at the rate of five cents for every hundred words

The fees on entering Judgment in the courts in the first district, are $1 in all cases, the clerks in that district being salaried officers.

The clerks fee of $1 on the trial, is not payable till the cause is called on to be heard.-Malcomb v. Jennings, 1 C. R. 41.

He is not entitled to any fee on a cause referred on the circuit, when called on, but only on a cause actually tried.-Benton v. Sheldon, 1 C. R. 134.

A full definition of the duty of the clerk, and the fees payable to him, is contained in 3 C. R. 102, and 5 How. 11, "in the matter of the clerk of Albany county." The following principles are established by such decision:

1. The clerk is not entitled to charge for entering any rule or order in the rough minutes, or in the books.

2. He may charge for the copy of any paper required by either party, at the rate prescribed in section 312.

3. There can be no additional charge for the certificate or the signature to it, and this provision extends to every entry made, and to every paper filed.

4. The fee of $1 is payable on every trial of an issue, either of law or of fact, and also on every appeal to the general Term from the judgment of an inferior court, or of a referee in suits commenced under the Code. The court thought, also, that it extended to inquests and judgments by default, whether original, or at general Term; though this, it is said, is, perhaps, a matter of some doubt. 5. But it does not extend to causes on the calendar, which are not tried or argued, or to trials before referees. "The meaning of the statute evidently is, that the fee is only to be paid to the clerk, where he attends and acts as clerk on the trial."

6. Nor does it extend to an appeal from an order, or for any

services on special motion, or appeal therefrom. Nor is such fee chargeable on any arguments at general terms, in old causes. These are mere motions, not trials; and services of this nature are "paid for, by the liberal compensation allowed the clerk for other services."

7. The fee of fifty cents for entering a judgment, is not chargeable till the perfecting of that judgment.-V. Bentley v. Jones, 4 How. 335.

It is competent for the clerk to refuse payment of his fees, if he choose to do so.-Schermerhorn v. Van Voast, above cited. The costs of interlocutory proceedings are thus provided for by sec. 315:

§ 315. Costs may be allowed on a motion, in the discretion of the court, not exceeding ten dollars.

In the original Code, the corresponding section prescribed that "no costs should be allowed on a motion, except the costs of resisting, not exceeding ten dollars," and the amendment now made, has cleared up a question, on which the court appear to have felt considerable difficulty under the old measure, viz.: how far the court possessed the power of imposing the costs of a motion, on extending relief to a party in default, notwithstanding the provisions in that measure, as above stated.

In Rider v. Deitz, 1 C. R. 82, it was held that, in a case of motion for non-suit, the payment of costs might be imposed "as a condition" upon a party in default. "We have," the court said, "the right to impose such terms, on which the plaintiff may clear himself of his default, as we think equitable or expedient." And, in Anderson v. Johnson, 1 C. R. 94, the same doctrine was held, the court asserting their power, in the following terms, in affirming a similar order at chambers:

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The plaintiff was relieved from the judgment to which the defendant was regularly entitled, on terms. The court, in granting relief in these cases, imposes such terms as, in the exercise of its discretion, are deemed reasonable."

Precisely the contrary doctrine was, however, held under precisely the same circumstances, in Richmond v. Russel, 1 C. R. 85, and likewise, with reference to a re-hearing, in Van Wyck v. Alliger, 3 How. 292; 1 C. R. 68. In neither of the above cases, however, do the former decisions appear to have been brought under the notice of the court, though in Richmond v. Russel, the same point was expressly put by counsel.

The particular difficulty is, of course, now removed by the amendment in the present measure; but the question as to how far the court may not still possess the power to impose the payment of extra expenses, beyond the $10 prescribed in that section, by way, not of costs, but of terms, on which only relief will be granted to a defendant in default, according to the doctrine laid down in Rider v. Deitz, and Anderson v. Johnson, may, perhaps, be still considered as open to argument. The case of Van Wyck v. Alliger, as reported on another point in 4 How. 164, is indirect authority in favor of the strict doctrine, that no more than $10 can be allowed on a motion, but that decision proceeded upon another point, nor was that of the power of the court to impose terms raised, or the authorities cited. Both generally, and also under the terms of sec. 173, it may well be contended that, when a party seeks to be relieved from the consequences of a neglect or default on his part, the court has the full right to impose upon him, as a condition precedent to granting such relief, any terms that may be proper; and that it ought to exercise that power to the fullest extent, when required, whenever such exercise will really be "in furtherance of justice."

The costs of a motion in an appeal taken prior to the Code, were held to be taxable under the old, and not under the new practice, in Lyme v. Ward, 1 Comst. 531; Syme v. Ward, 3 How. 342; 7 L. O. 10; 1 C. R. 101. In relation to appeal motions, or motions for rehearing in the courts of inferior jurisdiction, this section, and the corresponding one in the Code of 1848, are rendered retrospective by the supplemental act.-See Van Wyck v. Alliger, 3 How. 292; 1 C. R. 68.

Where given, the amount of costs on a motion must be expressed in the order, and, unless they are so given, they cannot be claimed by the prevailing party, whatever the result of the cause. "To entitle a party to costs under that section, they must be given in the order made upon the motion, and the amount must be fixed by the court, at ten dollars or less. They are not regarded as a part of the general costs in the cause, and their collection does not depend upon the ultimate decision of the cause."-Chadwick v. Brother, 4 How. 283. See, also, Van Wyck v. Alliger, 4 How. 164; Morrison v. Ide, 4 How. 304; Eckerson v. Spoor, 4 How. 361; 3 C. R. 70. A fortiori, they cannot be allowed where the order directs the contrary,