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sary, it was held that the prevailing party was entitled to the costs of one motion only, the order being directed to be entered in both causes.Hornfager v. Hornfager, 6 How. 13; 1 C. R. (N. S.) 180.

Rule 38 of the supreme court prescribes that, where a motion is granted on payment of costs, or on the performance of any condition, the party whose duty it is to comply therewith shall have twenty days so to comply, unless otherwise directed in the order; but, where costs to be taxed are to be paid, fifteen days are to be allowed. It appears somewhat difficult to understand the latter part of this rule, inasmuch as no provision whatever is made for the taxation of such costs. See observations and cases above cited. The proceedings for the collection of costs, when so adjudged, have already been considered, under the head of Execution.

The questions as to the amount of costs claimable under the Code, having thus been considered, those as to the persons against whom they may be enforced, remain to be adverted to.

The following provision is made by sec. 316, in relation to costs adjudged against an infant plaintiff:

§ 316. When costs are adjudged against an infant plaintiff, the guardian by whom he appeared in the action, shall be responsible therefor, and payment thereof may be enforced by attachment.

By section 321, analogous provision is made as to the assignee of a cause of action, as under:

$ 321. In actions, in which the cause of action shall, by assignment after the commencement of the action, or in any

other manner, become the property of a person not a party to the action, such person shall be liable for the costs, in the same manner as if he were a party, and payment thereof may be enforced by attachment.

In Giles v. Halbert, 5 How. 319, it was held that, where a real plaintiff prosecuted a suit against the defendant for a statutory penalty, by virtue of a parol agreement to divide the amount with the nominal plaintiff on record, if successful, and the defendant succeeded, the former was liable for the defendant's costs, and that an attachment might issue.

A question of some nicety arises, however, as to the latter portion of this order, and as to the power of issuing an attachment, as prescribed by the two sections last cited.

By c. 390 of the laws of 1847, the original remedy for interlocutory costs, by way of attachment against the person, is abolished, and proceedings in the nature of a fieri facias against property substituted, in all cases of their non-payment, except in the particular instances there mentioned, none of which comprise the peculiar cases now under consideration ; and the court has acted on this view in the cases of Vreeland v. Hughes, 2 C. R. 42, and Buzard v. Gross, 4 How. 23.

By the provisions now in question, the remedy by attachment is, however, retained, and, by sec. 468,"All statutory provisions inconsistent with the Code are repealed.” It seems clear that these provisions are inconsistent with c. 290 of 1847, and it might therefore be contended, both generally, and on the authority of Giles v. Halbert, as above cited, that the latter is "pro tanto" repealed.

The following provision is made by sec, 317, in relation to the costs of suits prosecuted by executors, or other parties, “ en autre droit," or specially authorized :

§ 317. In an action prosecuted or defended by an executor, administrator, trustee of an express trust, or a person expressly authorized by statute, costs shall be recovered, as in an action by and against a person prosecuting or defending in his own right; but such costs shall be chargeable only upon or collected of 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 such action or defence. But this section shall not be construed to allow costs against executors or administrators, where they are now exempted therefrom, by section forty-one, of title three, chapter six of the second part of the Revised Statutes; and, whenever any claim against a deceased person shall be referred pursuant to the provisions of the Revised Statutes, the prevailing party shall be entitled to recover the fees of referees and witnesses, and other necessary disbursements, to be taxed according to law. And the court may, in its discretion, in the cases mentioned in this section, require the plaintiff to give security for costs.

The section of the Revised Statutes here referred to, prescribes that no costs whatever can be recovered against the estate of a deceased party, unless “ it shall appear that the demand on which the action is founded was presented” within six months after the death of the testator or intestate," and that its payment was unreasonably resisted or neglected, or that the defendant refused to refer the same pursuant to the preced

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ing provisions,” in which cases the court may allow them. The provisions for referring disputed claims here alluded 10, are contained in sections 36 and 37 of the same title. Under section 317 of the Code, as now amended, it will be seen that disbursements are recoverable by the prevailing party on a reference of this nature. This was not provided for in the measure of 1849; and it was held that no costs were recoverable on such a reference, unless under the provisions of the Revised Statutes, in Lansing v. Cole, 3 C. R. 246.

Although, in an action against executors, costs are not generally recoverable; in Newton v. Sweet, 4 How. 134, it was held that fees and disbursements might be claimed in such cases under sec. 311, in accordance with the views laid down in Taylor v. Gardner, 4 How. 67, as respected an insufficient recovery in libel. In Belding v. Conklin, however, 4 How. 196, and Wheeler v. Westgate, 4 How. 269, the latter a decision at general Term, the above doctrine has been distinctly overruled as far as regards the latter, on the general ground that disbursements constitute a part of the costs in an action; and, should the point be raised, the same decision would doubtless be come to, with reference to costs against executors.

The decisions in affirmance of the principle above laid down, that a creditor suing an executor, cannot, in any case, be entitled to costs, unless the latter have refused to refer the claim when presented, or have unreasonably resisted or neglected its payment after presentation, are conclusive, as below cited.

A neglect on the part of the executor to advertise for claims, will not form sufficient ground for an award of costs against him.-Snyder v. Young, 4 How. 217 ; Van Vleeck v. Berroughs, 6 Barb. S. C. R. 341. !f, however, he omit to give due notice, no laches will be imputable to a creditor for not presenting his account on an early day.-Fort v. Gooding, 9 Barb. S.C. R. 388.

A diminution effected in the creditor's charge, will, of itself, go far to show that the demand was not unreasonably resisted. -Snyder v. Young, 4 How. 217, above cited ; Lansing v. Cole, 3 C. R. 246; Belden v. Knowlton, 3 Sandf. S. C. R. 758; 1 C. R. (N. S.) 127; Comstock v. Olemstead, 6 How. 77.

In Fort v. Gooding, 9 Barb. S. C. R. 388, costs were allowed against executors, on the ground of having unreasonably resisted the plaintiff's demand. The executors, in that case, though having ample funds for the purpose, denied the justice of the


whole of the plaintiff's claim, when presented, and refused pay. ment altogether, or to accept a fair offer of settlement, and this, without any offer to refer. Upon suit subsequently brought against them, the claim was only reduced by about one-fifth in amount, and this, not by any failure of proof, but merely by a difference of opinion between the referee and the plaintiff, as to the value of certain services, on a quantum meruit. It was held that the unqualified rejection of the claim in question, on the part of the executors, unaccompanied by any offer to refer, was equivalent to a refusal to refer ; and that, under such circumstances, no formal demand to that effect was necessary, on the part of the creditors. Not only were costs allowed to the latter, but an allowance was also made to them under sec. 308.

Where any real question existed as to whether the deceased was, or was not liable, the claim cannot be held to have been unreasonably resisted ; nor will the certificate of the referees to the contrary, be evidence on that point. Where, likewise, the agreement to refer has not been filed with the clerk, nor the order of reference entered, as prescribed by the provisions of the Revised Statutes above cited, the court does not become possessed of the cause, and no award of costs can be made.Comstock v. Olmstead, 6 How. 77, above cited.

An omission, on the part of the claimant, to present his claim to the executor as required by the Revised Statutes, may deprive him of his right to claim costs as against the latter, provided due notice to creditors has been given.-Fort v. Gooding, above cited. The commencement of a suit, within the six months, would seem to have the same effect. --Belden v, Knowlton, 3 Sandf. S.C.R. 758 ; 1 C. R. (N. S.) 127.

Where two persons sued as executors, and failed in their action, it was held that the fact that one of them was beneficially interested in the recovery, in right of his wife, was no ground for charging him with costs.-Finley v. Jones, 6 Barb. S. C. R. 229.

The review of the decision of an inferior court, in a special proceeding is, for all purposes of costs, to be deemed an action at issue on a question of law, from the time the same is brought into the supreme court; and costs may be awarded and collected thereon, as the court may direct ; sec. 318.

The costs of actions prosecuted in the name of the people, are thus prescribed by sections 319 and 320.


$ 319. In all civil actions prosecuted in the name of the people of this state, by an officer duly authorized for that purpose, the people shall be liable for costs, in the same cases, and to the same extent, as private parties. If a private person be joined with the people as plaintiff, he shall be liable in the first instance for the defendant's costs; which shall not be recovered of the people, till after execution issued therefor against such private party, and returned unsatisfied.

$ 320. In an action prosecuted in the name of the people of this state, for the recovery of money or property, or to establish a right or claim, for the benefit of any county, city, town, village, corporation, or person, costs awarded against the plaintiff, shall be a charge against the party for whose benefit the action was prosecuted, and not against the people.

Finally, the settlement of an action is provided for as follows by sec. 322:

§ 322. Upon the settlement, before judgment, of any action mentioned in sec. 304, no greater sum shall be demanded from the dofendant as costs, than at the rates prescribed by that section.

An evident error has been made in this section, and, singularly enough, still remains unamended, inasmuch as no rate of costs at all is prescribed by sec. 304, there referred to. It is clear the legislature meant to have inserted at the end, the words, " prescribed by the 307th section," where the rates are found, instead of those, “ by that section,” which have been erroneously allowed to stand. See dictum in Wilson v. Allen, 4 How. 59.

The question of discontinuance, and the periods at which the defendants right to costs accrues under sec. 307, has been already considered in relation to that section. See Rockefeller v. Weiderwax, 3 How. 382; 2 C. R. 3 ; Hull v. Peters, 7 Barb. S.C. R. 331; 3 C. R. 255 ; Foster v. Bowen, 1 C. R. (N. S.) 236 ; and Morrison v. Ide, 4 How. 304, there cited.

The attorney's lien for his costs, does not deprive the party of his right to discontinue, on the usual terms.—Brown v. Comstock, 3 C. R. 142.

In a foreclosure suit the court will permit the plaintiff, on receiving his debt and costs, to dismiss his suit, without paying costs to junior incumbrancers, or to the mortgagor.-Gallagher v. Egan, 2 Sandf. S. C. R. 742.

In Stafford v. Onderdonk, 8 Barb. S. C. R. 99, before cited, it was held that, where a plaintiff had recovered costs as to a portion of the defendants, he might discontinue as against another


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