Majority
p. 607Potter vs. Richards. ALBANY, Feb. 1834.
Headnote
The costs and expenses allowed to a defendant who is discharged from ar-. rest, on a warrant issued under the act to punish fraudulent debtors, are taxable costs' according to the fee-bill, and no other.The plaintiff having commenced a suit in this court against the defendant, obtained a warrant against him under the provisions of the act to abolish imprisonment and punish fraudu* lent debtors, Laws of 1831, p. 396, § 3, 4, 5, whereon the defendant was arrested and brought before a commissioner, who, after receiving the defendant’s affidavit and examining him on oath, dismissed the complaint and directed the defendant to be discharged from custody. The defendant thereupon made out a bill of costs incurred in the proceeding, and had the same taxed by a commissioner, on notice to the plaintiff. The commissioner allowed a counsel fee of $10, it being shewn that two counsel attended for the defendant, on the return of the warrant; he also allowed $2 for the defendant’s time, $1,50 for carriage hire, and $2,50 for the defendant’s expenses. These items were objected to by the plaintiff, who now moves for a retaxation.
M. T. Reynolds, for the plaintiff
The statute provides that when a complaint like that instituted here shall be dismissed, the party making the same shall be liable for all fees to offices and for all costs and expenses which the defendant shall have incurred. Laws of 1831, p. 401, § 22. This provision gives the defendant no more than ordinary taxable costs. The words damages and costs in a statute include only taxable costs according to the fee-bill. 1 R. L. 328, § 23. Cowen’s Tr. 266. 16 Johns. R. 141. 2 id. 107. The words costs and expenses are synonymous, 2 Dunlap's Pr. 708, 735, 736, and the word charges is of the like import, 1 R. L. 519, § 7; 2 Dunlap's Pr. 710. As to the allowance for time, it was wholly unauthorized. See 1 Chitty's Cr. Law, 9, 613, 826, as to allowance to-prosecutors under English statutes.
p. 608
N. P. Randall, for the defendant,
submitted whether tlie costs given by the statute could be taxed and collected by attachment ; if not, he contended that the taxation was a nullity, and a retaxation would not be ordered. Upon the merits, he insisted that the object of the statute was to make the defendant whole, by allowing him not only the fees paid to officers, but all costs and expenses incurred by him. The fee-bill ltsakes no provision for a case like this.
By the Court,
A taxation was undoubtedly proper; there was a suit pending, and in a proceeding had therein, the defendant became entitled to costs, which could be liquidated only by taxation. I am of opinion, however, that the commissioner erred in the taxation. Besides fees to officers, the statute allows costs and expenses incurred by the defendant; these terms do not moan all expenses which may be incurred ; they mean only taxable costs. When the legislature intend to give a party his disbursements, they use that term; they have not done so here, and the defendant can have no other fees', costs or expenses, than are provided by statute. A retaxation, therefore, is ordered.