Larroway v. Lewis — 1 Cole. & Cai. Cas. 126

Majority

p. 126

Larroway ads. Lewis and others. The same ads. Van Loon and others.

Headnote

VAN VECHTEN moved to set aside the attachments, which, in these two cases, had been granted for costs of putting off the trials, and that there be a retaxation.

He contended that attachments are ordinarily granted on rules to show cause, and are never made absolute in the first instance, excepting in very flagrant cases; and that if the party answer he shall be discharged from the attachment; and cited 1 Bac. Abr. 183. B. 2 Hawk. Plea. Cr. 214. He further insisted, that there must be a demand made of the costs after the bill has been regularly taxed, and at the time of serving the rule to show cause, before the party can be considered as in contempt. He cited 1 Barnes, 120. 1 Lilly’s Abr. 162. Besides, he insisted, that,' according to 1 Salk eld, 83. no attachment, will ever lie for the costs of putting off a trial.

C. Elmendorf, in reply,

contended, that in England the attachment is always absolute in the first instance. .He cited Tidd's Pr. 364.. Runnington on Ejectment, 142. 1 Sellon, 415.

■ ■ Whenever a cause goes off on motion of the defendant upon payment of costs, the plaintiff has his election', either to wait the event of the suit, and have all his costs taxed together, or he

p. 127

may make them out instanter under the direction of the court, (subject, however, to be reviewed on a future taxation, if required) and demand them immediately, and if not paid he may proceed with the trial; or he may waive this privilege and resort to his attachment ; but if he does so, he must first have his costs regularly taxed on a proper notice, as in other cases, and that notice must be served on the attorney in the suit, and not on the counsel, as it has irregularly been in this instance. Had he done this, he would have been entitled to his attachment instantly, without a previous notice.

The notice in this case having been served on the counsel, and the taxation having been made the same day that notice was given, the taxation and all proceedings founded on it are irregular.

As to the case mentioned from Salkeld, it is .anonymous and stands alone; we lay no weight upon it.

Let the attachment be set aside with costs,