Hoadley v. Cuyler — 10 Wend. 593

Majority

p. 593

Hoadley and others vs. Cuyler.

ALBANY,

Nov. 1833.

Headnote

Where a party ia relieved from an inquest, or the like, on payment of costs, if he offers to pay the costs on a taxed bill, and there is time after such offer to prepare a bill and give the usual notice of taxation, and have the costs taxed before the expiration of the 20 days, notice must accordingly be given ; if there be not time for Adi notice, short notice may be given, or the party offering to pay may be required to go forthwith before a taxing officer ; the costs in any event must be paid within the twenty days.

On the seventh day of August last a rule was entered setting aside an inquest on payment of costs. On the twenty-seventh day of the same month, an offer to pay the costs when they should be didy taxed was made by the defendant. The costs not being paid within the twenty days after the entry of the rule setting aside the inquest, the plaintiff issued an execution, which was now moved to be set aside for irregularity.

By the Court,

In the case of Southerland v. Sheffield, 2 Wendell, 293, in which the proceedings of the plaintiff were set aside on payment of costs, it was said under the peculiar circumstances of that case, that the defendant was not bound to pay the costs until they were taxed: the plaintiff demanding a sum in gross, and refusing to give a bill of items. Applying what was said in that case to ordinary cases, it is understood that many of the profession have fallen into an' error on this subject. It always was the practice of this court, that a party relieved on paying costs, must seek his-

p. 594

adversary and pay the costs. The payment must Be made-within twenty days after entry of the rule. If the costs are-offered to be paid on a taxed bill, and there is time after such-offer to prepare a bill and give the usual notice of taxation? and have the costs taxed before the expiration of the twenty days, notice should be given, and the costs taxed by a proper officer. If there be not time for full notice, short notice may be given, or the party offering to pay may be required to go forthwith before a taxing officer. In this way a taxed bill may be demanded, but not otherwise; the costs in. any event must be paid within the twenty days.