Clute v. Parker — 1 How. Pr. 229

Majority

p. 229

John D. Clute vs. Hiram Parker.

Headnote

A motion made under the new rules, on an irregularity which occurred under the old rules, costs of the motion according to the old rules will be allowed. The 61st new rule does not apply in such a case.

Motion by defendant to set aside capias for irregularity.— This was a motion to set aside the capias issued in this cause, on the ground that it was tested in the name of Samuel Nelson, Esq., Chief Justice, the first Monday of May 1845; whereas, at that time, Greene C. Bronson, Esq., was chief justice.

L. Benedict Jr., Hefts Counsel T. J. Glover, Hefts Mty.

D. Wright, Plffs Counsel. G. A. Halsey, Plffs Mty.

It was objected by plaintiff’s counsel, to payment of costs of this motion, that it was made since the new rules went into operation, and was made merely for the costs.

It was answered that the writ was issued under the old rules; and the error having occurred under them, they should govern as to costs : that the 61st new rule did not apply.

Decided that the old rules must control the costs, and allowed the writ to be amended nunc pro tunc, by inserting the name of the chief justice; the plaintiff to pay ten dollars costs of the motion.