Benham v. Lumberman's Bank — 20 Wend. 673

Majority

p. 673

Benham vs. The Lumberman’s Bank at Warren.

Headnote

In an action commenced by atlaelmennt against a foreign corporation, for the recovery of bills or bank notes issued by it, the plaintiff in his bill of costs is entitled to charge for 'copies of the bills or notes produced to the officer issuing the attachment ; also for copies of the same filed with the declaration, where that contains only the money counts ; also for copies of the same inserted in the judgment record, where the judgment is by assessment after a default for not pleading.

The plaintiff is not entitled to charge for copies of the notes or bills voluntarily served with the declaration ; nor for copies of the same inserted in the circuit roll where there is a defence, or in the judgment roll, where there is a verdict.

p. 674

It seems that it is necessary to insert copies of the bills or notes m the circuit roll only where the plaintiff includes several different parties, as dt-awer or maker and endorser, in the samé action.

S. Stevens, for the defendants,

moved for a re-taxation of e jsts.

Jl. laber>¡ contra.'

The action was commenced by attachment against a foreign corporation and copies of the bills or bank notes on which the suit was brought, were necessarily produced to the officer on issuing the attachment. 2 R. S. 460, § 18. The charge of $18.25 for those copies was properly allowed. The like charge for copies of the notes filed with the declaration was also proper. That was the only way in which the plaintiff could have his damages assessed by the clerk on a judgment by default, as the declaration only contained the money counts. Statutes, Sess. of 1832, p. 490, § 10. 19 Wendell, 113.

The charge of $18.25, for copies of the notes to serve with the declaration, was improperly taxed. Those copies were not necessary. 19 Wendell, 113. Where a bill' of particulars is furnished voluntarily, without a call from the other party, it cannot be taxed. 18 Wendell, 648. The like charge for copies of the notes inserted in the judgment record was improperly allowed. If there had been an assessment of damages by the clerk on a default, it would have been proper to insert copies of the notes in the judgment record, for the purpose of showing the regularity of the proceedings. But the defendants pleaded, and judgment was entered on the verdict of a jury. Copies of the notes in the judgment roll were wholly unnecessary.

It is only necessary to insert copies of the bills or notes in the circuit roll, where the plaintiff includes several different parties, as drawer or maker and endorser, in the same action, under the act of 1832, as amended, Statutes Sess. of 1837, p. 72. As this was not a case of that kind there was no necessity for inserting copies of the notes in the circuit roll. But on looking

p. 675

into the bill of costs, I find no charge whatever for the circuit roll. That was probably included in another bill which is not before me.

The two charges for copies to serve, and those inserted in the judgment record, amounting to $36.60, must be stricken out.

Ordered accordingly,