The plaintiff was entitled to the charge of $7. This was intended as compensation of a notice of trial, issuing subpoenas, &c., preparatory to trial, and is part of the costs of circuit {Code, § 307). Fifteen dollars is the allowance for trying the cause, and not for the preparation (5 How. Pr. R. 336; 4 id. 304). The same pleadings, perhaps, may be used on a second trial, but that does not alter the case. Nor do the provisions of the Code, giving costs where a cause is not reached, or is postponed, apply, when there has been a trial {Code, §307, 314).
Travel of the witness was also properly allowed. Probably, his permanent residence was in Montgomery county, but his place of business, and from which he actually travelled to attend as a witness in this cause, and to which he immediately returned, was New York. This case can not be distinguished from that of Clark vs. Staring (4 How. Pr. R. 243). Where Mr. Justice Gridley, allowed the charge.
The precepts to collect ten dollars each, were regular. These
The remarks of Mr. Justice Parker, in Morrison vs. Ide (4 How. Pr. R. 304), are not opposed to this view. One precept there, was issued in the wrong court, and the other, for costs not taxed. Formerly, there must have been a personal demand and a motion to the court (2 R. S. 535, § 4; 9 Paige, 609: 1 Burr. Pr. 339). But this was changed by statute (Laws of 1840, p. 333, § 15).
That act requires orders, awarding costs on granting or denying special motions, to specify the amount of such costs, “ and where the order for the payment of costs, or of any sum of money, upon a special motion, is not conditional, a precept to enforce payment of such costs or sum of money, may be issued without any demand or application to the court.” That precept was an attachment until the statute of 1847 (chapter 390, page 491), which prohibited, with certain exceptions, an attachment against the body for interlocutory costs; and provided that “ process, in the nature of a fieri facias against personal property, may be issued for-the collection of such costs, founded on such order of court.” This was only a substitution of process against the goods, for that against the body, and did not change the practice in obtaining it. The Code has not made any alteration in this respect (Code, § 178,468, 469, 471. And see Buzard vs. Gross, 4 How. Pr. R. 23; 5 id. 376). Payment of these two sums often dollars each was a part of the conditions of relief, and by default as to them, the defendant lost the benefit of the rule. It follows, that whatever may be the mode of ascertaing the costs of a circuit, the plaintiff was regular in issuing execution. But as there seems to have been a misapprehension of the practice, defendant may still be relieved on terms.
If the defendant had paid the $20, according to Headley vs. Cuyler (10 Wend. 593), he was not entitled to twenty days after taxation of the costs of circuit. The rule adopted in that case was very rigid. And in ordinary cases, a party has fifteen days
The defendant has made two motions when relief could have been obtained by one. He must, therefore, pay $10 costs of opposing these motions. And upon paying that and the costs of circuit, and of the two former motions and of the sheriff on the execution and the two precepts, the verdict, judgment, and ex-execution and precepts, must be set aside.
Ordered accordingly.