Allowed all the items objected to, except Nos. 7, 8, and 10, which were stricken out under the objections. The 2d item, counsel perusing and amending narr, was allowed upon the former decisions of this court, (one of which is appended in a note.) In No. 10 it was decided that witnesses attending before a commissioner to take foreign testimony, could not be allowed fees, as the commissioner was not a court or officer within the meaning of the statute.
Note.—Thompson vs. Crippen and Another. Where a suit was commenced in 1843, and determined shortly previous to the amendatory act concerning costs, passed May 4, 1844, (Session Laws of 1844, p 402) but the prevailing party did not tax his costs until after the act had taken effect; held, that its provisions were to control the taxation, though items not allowed by the act of 1840 were thus rendered taxable.
*234Costs. This suit was commenced in 1843, and was determined in favor of the defendants a short time' previous to the act of May 4th, 1844, (Sess. L. of 1844, p. 402,) hut their costs were taxed afterwards.
The bill contained a charge for “ Counsel attending prepared to tryf fyc. $3 ; which was objected to, but allowed by the taxing officer.
J. W. Thompson, for the plaintiff, now moved for a retaxation, insisting that no counsel fee was allowable for a circuit at which the cause was not tried. He cited Itticlc vs. Whitney, (4 Hill, 54.)
N. Sill Jr. for the defendants relied upon the second section of the act of May 4th, 1844, which expressly allows a counsel fee for attending prepared to try £c. He con. tended that as the taxation in the present "case took place since the passage of the act mentioned, its provisions were applicable, notwithstanding the suit was determined before.
Nelson, Chief Justice.—Decided that the charge in question was taxable. Motion denied.