Willard v. Mayor of Hudson — 5 Cow. 28

Majority

p. 28

Willard and Platt against The Mayor, &c. of Hudson.

Headnote

A brief, attorney, and counsel fee, not allowable on a motion of course in partition, and other real actions.

In partition. It was submitted to the Court, whether the attorney for the plaintiffs should be allowed in taxation of costs upon a judgment against the defendants, a brief, and an attorney and counsel fee on each ordinary motion in the course of the cause; and

C. Bushnell, for the plaintiffs,

contended that he should; that in a real action there is no common rule, or rule of course ; but all motions must be made in open Court; and must stand on the footing of any special motion as to the costs.

E. Williams, contra,

said that these were motions of course, though made in open Court. Special motions, properly so called, are founded on affidavit or other proof, of which the opposite party must be apprized, and have notice

p. 29

of the motion. The ordinary motions in real actions, do net imply opposition ; and there is, therefore, no need of a brief, and fees for argument as upon special motions.

These charges cannot be allowed. They are inadmissible, except upon such motions as require notice to the adverse party, being founded upon special cause. The ordinary rules taken in the progress of a real action, are as much rules of course as those which are entered in the common rule book. The only difference is in the form of moving them, and the time of entry, which is in open Court, and within the term.^[1]

Rule accordingly.

(a) (a) See 1 Reg. Gen. April term, 1796.