Carroll v. Frazee — 2 How. Pr. 93

Majority

p. 93

Peter Carroll agt. John O. Frazee et al.

Headnote

Costs on a motion for judgment, as in case of nonsuit, granted absolute, cm not 6e collected on a precept: they should be included in and collected in the general costs of the cause.

February Term, 1846.

Motion by plaintiff to quash or set aside a precept for irregularity, and for discharge of plaintiff from imprisonment.

The defendants in this cause obtained a rule for judgment, as in case of nonsuit, with ten dollars costs, by default, on the 10th day of December last, at special term. Defendant’s attorneys’ made out their costs, and had them taxed on notice on the 19th December last, and perfected judgment on the 22d December. The ten dollars costs on the motion were not taxed in the general bill, and included in the judgment record. On the 16th December, one of defendants’ attorneys demanded of Carroll, the plaintiff, ten dollars, the costs of the motion for judgment as in case of nonsuit; which he refused to pay; and on the 18th of December a precept was issued for the ten dollars costs, and Carroll arrested and imprisoned.

N. Hill, Jr., plaintiff's counsel.

Gay & Beach, plaintiff's attorneys.

B. W. Peckham, defendants' counsel.

Van Dresar & Elwood, defendants' attorneys.

The costs should have been included in the general costs of the cause. Where judgment as in case of nonsuit is granted absolute, the costs of the motion cannot be collected on a precept: they should be collected as the general costs are.

Motion granted.