Majority
p. 175Israel Post, Jr. agt. Obadiah S. Haight. June Term, 1846.
Headnote
A precept issued to collect costs granted on a motion, is irregular, if issued within twenty days from the date of the order granting costs. (See 60 Buie.)Motion by plaintiff to set aside a precept, for irregularity.
On the third day of June, 1845, a motion was made by defendant, to the special term of this court, then in session, to consolidate this and another cause, which motion was granted, with ten dollars costs. On the fifth day of June last (1845), defendant’s attorney issued a precept, by virtue of which the plaintiff was arrested and committed to jail, for the non-payment of the ten dollars costs, ordered on the motion to consolidate.
D. Weight, plaintiff's counsel.
Wm. B. Litch, plaintiff's attorney.
1ST. Hill, Jr., defendant's counsel.
A. Haight, defendants attorney.
Plaintiff’s counsel insisted that the precept was irregular, it could not be issued until twenty days after the date of the order, under the 60 rule.
Held, that the precept was prematurely issued, defendant *should have waited twenty days under the 60 rule. Motion denied with costs, but no action for false imprisonment to be brought by plaintiff.