Corlies v. Cummings — 7 Cow. 154

Majority

p. 154

Corlies and Widdifield against Cummings.^[4]

NEW YORK,

May, 1827.

Headnote

Costs as bean^party “tiíó plaintiff ' imv-

of testimony in « case allowed on taxation; tho’ not relating to the decision or Judge,8 °f nor $as!,eii - upo.n being inserted ^dnofobject to’ on set" tlingthe case, as unneces-

of testi™°ny relating an^'overruied

nothing allowed as for üons,^whicii ^e6”ly tim.

to’number'the lines allowed word f0r’ each

al lowed for a bill madeXwfth0Ia case in the same cause; the party beIng compelled to elect between them, and having elected the case.

Draft and copying depositions under a commission allowed.

Costs of orders for time to make a case disallowed.

Assumpsit. This cause was twice tried. On the first trial, the defendant relied on two distinct grounds of defence; to both of which the plaintiffs gave some evidence by parol; other evidence by depositions taken de lene and other evidence taken upon commission, in which both ... > ' . . . ■^parties joined; and half the expense of executing which had been paid by the defendant, viz: $37 50.

, . „ - . -.. i i. ii Both points of defence were submitted to the jury by the circuit j'udge. They found for the defendant; and, according to his direction, declared tipon what ground they gave their verdict.^[2] This was upon only one of the grounds of defence set up by the defendant.

The plaintiffs took several exceptions, to the j'udge’s decisions and charge upon the trial; and, after obtaining two orders for time to make a case, drew it, with a bill of ex-1 ill 1 1 r, 1 , ceptions, and served both upon the defendant s attorney, The case contained the testimony upon both points given at the trial, both oral and written. As to the latter, it varied but slightly from the very words of the depositions ; but no objection was made before the j'udge who settled the case on the ground of verbosity. The lines of the draft, copy to serve, and copy for the j'udge to settle by, on amendments being proposed, were made to correspond, and were numbered by figures. In May term, 1826, this court ordered the plaintiff to elect^[3] between the case and bill of exceptions. They elected the former; and the case was argued upon points made on that part of it only, which related to the ground passed upon by the j'ury. The facts in relation to the other ground were inserted; so that this court might see, if they should be against the finding of the jury upon the ground taken by them at the

p. 155

trial, that there was still no reason for the defendant’s re-taming his verdict on the other ground. Wo objection was made at the trial to any decision of the circuit judge, in relation to the ground not passed upon by the jury. .

This court granted a new trial, with costs to abide the event;^[4] upon which the plaintiff recovered; and noticed his costs for taxation before ■ a commissioner. He decided,

1. That the statement in the case, of testimony relating to the ground of defence not passed upon by the jury, should not be taxed at all.

*2. That the statement of evidence relating to any point made by the plaintiffs, and decided against them, should not be allowed.

3. That the figures should not be allowed in computing the folios.

4. That nothing should be allowed as for the draft of any testimony inserted in the case from the depositions.

5. That nothing should be allowed for the bill of exceptions.

6. That nothing should be allowed for the services of the commissioners in drafting and copying depositions taken under the commission.

7. That the costs of the plaintiffs’ orders for time to make the case, should not be allowed.

T. Fessenden, for the plaintiffs, moved for a re-taxation.

D. Lord, junior, contra.

We think the commissioner erred in the first and second points of decision. We are not in the habit of scanning cases so critically, when presented for taxation. A party should be allowed to. spread .everything on the case which is reasonably necessary to a history of the cause at the circuit; so as to raise the • points, and exhibit the views arising upon it. The evidence as to the ground not taken by the jury, might or might not be necessary. The counsel could not say whether it would turn out to be ma

p. 156

terial or not. He supposed it might; and in good faith proposed its insertion. Its insertion was sanctioned by the circuit judge, without objection by the opposite counsel at the time. If this part of the case was really objectionable, as mere surplusage, he should have made that a.point before the judge who settled the case, by proposing its exclusion in his amendments, or otherwise. The plaintiffs’ counsel acted in good faith; and it is too late now to raise the objection.

So, as to the testimony upon which the plaintiffs made mistaken points. It is dealing very nicely with counsel to strike out all the matter except that particular part sustaining *the valid point. Counsel are right in raising several points according to their own notions of their client’s rights: and it does not follow of course, that because any of them are overruled, the foundation on which they were raised, will be laid out of view in taxation. If it be seen that they have acted fairly and discreetly; which, indeed, should be intended till the contrary appear ; their success upon one point should carry the costs as to all.

The figures were usefully inserted; and we direct that they be taxed at one word for each figure.

On the fourth and fifth points, the commissioner was right. There was no material variance between the deposition as read, and that inserted in the case; and in respect to these, it could not be considered as a draft. The plaintiffs were bound to know that both the case and bills of exceptions would not be proceeded upon.

As to the charges of executing the commission, there was a decision, (Kenney v. Van Horne, 2 John. 107 ,) against their allowance. But the statute of 1813, (2 R. L. 15,) is broader than the one upon which that decision proceeded ; and we think warrants the taxation of these charges. The old statute allowed costs for certain specific drafts and copies, and other necessary entries. (2 K. & R. 72.) The words of the act of 1813 are, entries or proceedings in a cause, according to the course and practice of the court. (2 R. L. 15.) The depositions were a necessary proceeding in the cause, within the act. We allow this portion of the bill,

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therefore; but not exceeding $87 50. The parties joined m the commission; one halt the charges ot execution being fixed at that sum.

The orders for time were to accommodate the plaintiffs; and were properly disallowed on that ground.

Buie accordingly.