cable to both, and conformable to § 5, sub. 4, Chapter 2, 3d Part, relating to set-offs in justices' courts."

$10. As reported; enacted with variations § 10 R. S.

Original note. "The proviso, or 3d branch of § 4, was enacted when a recovery of twenty-five dollars in the common pleas, carried costs. As that rule is abolished by the act of 1818, p. 60, § 5, the provision allowing the plaintiff to recover costs in such cases when removed to the supreme court, ought to fall with it. The rule in this section is at variance with 7 Cowen, 151, and 5 do. 281, as to full costs; but is believed to be more just, and more equitable than § 2, Laws of 1817, p. 335, which gives full costs in certain cases."

[S 12. Same as enacted, except that sub. 1, was reported as follows: "§ 1. Actions for false imprisonment, of replevin, and against executors or administrators, or against corporations." (1)].

Original note. "(1) Part of § 5, varied by inserting corporations, as justices do not have jurisdiction of suits against them." To sub. 2. "Part of § 7, rendered contrary to the construction given in 1 Cowen, 163, but believed conformable to the intent of the legislature; and varied in allowing the jury that assess the damages in cases of default, to find the malice. By § 8, 1 vol. K. and R. p. 530, in cases of wilful trespass, in the supreme court and all other courts, costs were allowed. But in the revision of 1813, this section was omitted. That omission is continued, but the principle is retained as to the common pleas." To sub. 3. "Latter part of § 7 and 16, p. 82, Laws of 1818."

[S 14, 15. Same as § 13, 14 R. S.]

Original note to § 15. "Probably by the accidental use of words, excepting the city and county of New York, in § 1, of the act of 1824, p. 279, without a proper qualification, an exception in the law of costs as to the court of common pleas of that county, has been introduced, (see 3 Cowen, 375,) which could scarcely have been intended. For, it is held that a recovery over twenty-five dollars, carries costs in that court. This is supposed to be so hostile to the general policy of the law, that the above section is proposed to remove all ambiguity."

[S 16. Same as § 15 R. S. except that the clause between the word "exchange," and the word "but," was reported as follows: "there shall be a recovery and taxation of costs against the defendant, in one suit only, at the election of the plaintiff; and in the other suits, the actual disbursements only shall be taxed."]

Original note. "Part of § 14, 1 R. L., 521, and § 6, Laws of 1818, p. 280, consolidated. Qualified according to 6 Cowen, 395."

66

[S 17. Same as § 16 R. S.] Original note. "§ 2 and 3. § 11 and 12, 1 R. L., 343, and parts of other sentences, 7 Cow., 152. This in connection with previous sections, will alter the law as declared in 1 Cowen, 415, that in suits for libels, full costs are awarded, without regard to the amount recovered."

IS 18. Same as § 17 R. S.] Original note. "Part of § 2, varied and qualified. See 11 J. R., 403; 5 Cow., 14; do., 267; 4 Cowen, 87, conformed to the principle adopted by the court, in 4 Cow., 548.” [S 19. Same as $§ 18 R. S.] Original note. "§ 10 enlarged, so as to include actions on contracts, for penalties and real actious, and all

66

cases in which a defendant shall be acquitted, as well upon demurrer, plea in abatement, or discontinuance. It is conceived that a uniform rule ought to be prescribed, to avoid the questions which constantly arise. See 1 Cowen, 422; 3 do., 369."

[S 20. Same as § 19 R. S., except that the words "action brought for the recovery of land or the possession thereof," were substituted by the legislature for "writ of right, or in any action of ejectment or dower," as reported.]

Original note. "Same section, applying that part of it which induced the limitation of the section to certain actions, to those cases, and extending it to actions of nuisance, of waste, and on the case for torts, where the same reason precisely seems to exist as in trespass; and to writs of right and dower, which seem to be on the same footing as ejectment."

IS 21. Same as $20 R. S.]

Original note. "In 5 J. R., 160, it was held, that in an action upon a contract, any matter going to the personal discharge of one defendant might be proved, and a verdict and judgment rendered against the other defendants. This case has been subsequently followed, and the principle is now well established in this state. It presents, therefore, a new case, as to costs, requiring legislative provision. It is conceived, that in such cases the presumption is in favor of the plaintiff, and that to charge him with costs for prosecuting a person whose contract he holds, it ought to appear that the suit was unnecessary or unreasonable. In many cases of joint contract, it may be absolutely necessary to prosecute all the contractors, to avoid the effects of a plea in abatement. The above section is drawn upon these principles."

[S 25. As reported; partially enacted § 22 R. S.] Original note. "A general rule, 2d Inst., 289, Say., 228; and compiled from various statutes giving double and treble damages; qualified according to the decision in 3 Cow., 346."

[S 26. Same as § 24 R. S.]

66

Original note to sub. 1. "§ 1, 1 R. L., 155, extended to all public officers, see note to § 14, Chap. 6, 3d Part, p. 16, and to demurrers, see 5 J. R., 182, and also to actions for negligence, which are often as vexatious as any others, and seem to be within the same principle as actions for torts done. 6 Or other proceeding.' To reach cases of all descriptions, and especially such a case as that in 3 Cowen, 17." To sub. 3." 2, 1 R. L., 155, gives treble costs in this case. It appears to the Revisers, that double costs will be enough, if they should be allowed at all. The 13th section of the act to suppress immorality, 2 R. L., 197, allows treble costs in actions against persons for doing or causing to be done, anything in pursuance of this act;' it is omitted, as being within some of the subdivisions of this section."

[S 27. Same as § 25 R. S., except that the word "defendant" was substituted for "party," throughout.] Original note. "Contrary to 8 Cowen, 253; it is conceived that it can be scarcely necessary to assign reasons for the above provision."

[$ 28. Same as § 26 R. S.]

Original note to sub. 1. "2 W. Bl. R., 800, 1199; 5 East, 265; 2 B. and P., 334." To sub. 2. "3 T. R., 654; 6 T. R., 602." To whole sec

tion. "The questions presented in the preceding section, have given rise to much difficulty in England; see the cases well collected in the American edition of Comyn's Digest, v. 3, p. 237, from which the preceding rules have been extracted, as being upon the whole the best guide that can be given, and preferable to the discretion given by § 10, 1 R. L., 519."

[$ 29. Same as § 27 R. S.] Original note. "13 East, 191.” [S 30. Same as § 28 R. S.] Original note. "Conformable to 2 Burr., 713. Barnes, 141, but afterwards apparently overruled in 5 East, 161. The rule as proposed is, however, believed to be just."

[S 31, 32. Same as § 30, 31 R. S.]

Original note to § 32. "2d branch of § 13, 1 R. L., 346. 'Discretion of the court.' It is held that although a venire de novo is awarded, the plaintiff in error is absolutely, in all cases, entitled to costs, 3 Cowen, 368; and yet upon granting a new trial, in a cause originally commenced in the supreme court, a discretion is exercised which is regulated by certain rules; such as leaving the costs to abide the final result, where the trial is ordered in consequence of a mistake in the law, 7 Cowen, 456. The like rule should exist in both cases. 'If a judgment be reversed in part and affirmed in part,' &c. To give the court power in such cases, which it seems from 8 J. Rep., 111, they do not possess."

[$ 33. Same as § 32 R. S.] Original note. "Latter part § 12, 13, 14, enlarged to all cases of quashing a writ."

[$ 34. Same as 33 R. S.] Original note. "§ 14, varied so as to allow such costs in all cases, as well where the verdict was against a plaintiff as a defendant; contrary to 6 J. Rep., 278."

[$ 35. Same as § 34 R. S.] Original note. "To remedy a defect presented by the case in 4 Cowen, 711; and to extend the equitable powers of the court in such cases."

[$ 36. Same as § 35 R. S.] Original note. “Declaratory of existing law. 8, 1 R. L., 134. The latter part new, to remove a doubt entertained in 2 Cowen, 402, and extended to appeals to chancery."

[S 37. Same as $ 36 R. S.] Original note. "§3, 1 R. L., 326, varied in allowing actual costs, notwithstanding a countermand, according to 18 J. Rep., 135."

[S 38. Same as § 37 R. S.] Original note. "The title referred to, contains the cases in which executors may be made personally responsible."

[S 39, 40. Same as 38, 39 R. S.] To 40. "Declaratory."

Original note to § 39. "New."

[$ 41. Same as enacted § 40 R. S.] Original note. "According to 4 Cowen, 402; do., 548; 3 Burr., 1453; 2d do., 780; 4 do., 1963; 1 Term Rep., 396, 405."

[S 42. Same as § 41 R. S.] Original note. "In 5 Cowen, 291, the court refused costs, saying, 'if the relator wishes to secure them, he must go to his demurrer or issue of fact.' But after a full return, presenting no disputed fact, why drive a party to a formal demurrer, when the object of the proceeding is obtained at once, by a motion? The better policy would seem to be, to discountenance such unnecessary pleadings."

[S 43, 44. Same as § 42, 43 R. S.] Original note to § 44. "The practice of awarding costs on attachments, arises in most cases from the equitable powers of the court. It is deemed salutary to confer the authority expressly. The last section is conformable to 4 Cowen, 68; 1 Cowen, 214."

[S 45. Same as § 44 R. S.] Original note. "Conformable to 2 Cowen,

460."

"TITLE II.-Of security for the payment of costs."

S1. As reported; enacted with variations § 1 R. S."

Original note. "Rule, 14th Jan. 1798, of supreme court, extended and varied. Provision concerning infants, qualified, because their next friend must be a responsible person, in certain cases, see Chapter 8, Title 1, Part 3; nominal plaintiffs omitted, because there will be none. The case seems to require legislative provision, as well to remove all doubts as to the authority, as to provide for some details, to which the power of the court probably does not extend, and to make the rules uniform in all courts. (1) 1 Cowen, 60, enlarged. (2) 4 J. R., 484, as to trustees; the reason would seem to be still stronger, where the suit was in the name of an insolvent."

[§ 2, 3. Same as enacted, except that the words "and the sureties shall justify, if excepted to," in § 3, were inserted by the legislature.] Original note to § 3. "Ib., varied, by allowing the order in vacation, so as to save the delay of an application to the court."

[$ 9. Same as § 8 R. S., except that the words "or his attorney,' were added by the legislature.] Original note. "Necessary to meet a difficulty presented in 13 J. R., 125."

"TITLE III. Of the fees of certain officers."

[S 1. Same as enacted.]

IS 2. Same as enacted, except that the allowance of twelve and a half cents for reading and filing every paper or proceeding in the cause, was inserted by the legislature.] Original note to first paragraph. "New. The folio will be proposed to be uniformly 100 words, in all courts. To the section. "Partly new; chiefly from 2 R. L., 3.” [ 3. Same as enacted.]

[S 4. Same as enacted.] Original note. “The retaining fee in chancery is five dollars. The allowance on appeals is extended to writs of error. The present allowance for arguing a cause in chancery, is eight dollars. It is suggested whether the fee in the court of errors ought not at least to be equal? It has been deemed useful to consolidate the fees of counsel, instead of having them, as they now are, separate on appeals and on writs of error."

[S 7. Same as enacted, except that the fee for "signing and acknowledging a deed," &c., was reported "one dollar and fifty cents," and the following, "appointing any person to appear as next friend for any infant, twenty-five cents," was inserted by the legislature.] Original note. "Act 1823, p. 420, omitting only the fee for administering an oath, which is included in a general provision. The concluding words after 'reasonable,' new, and in no other respect varied."

[$ 9. Same as § 8, excepting that the following clause was omitted by the legislature: "for hearing the argument of a cause, two dollars."]

Original note. "To provide for the allowing injunctions, &c., satisfaction of decrees, &c., and other duties which circuit judges may per form."

[S 10. Same as 9 R. S.] Original note. "Laws of 1823, p. 423; by the increase of the folio, the rate is reduced."

[S 11. Same as § 10 R. S.] Original note. "New."

[S 12. Same as enacted, except that the allowance of the 7th item was reported "one dollar and fifty cents," and for the twentieth, "two dollars."] Original note. "The first, sixth, seventh, twenty-third, and twenty-fifth items, varied. The rate of some of the fees is slightly reduced by the increase of the folio. The four last items are new, to conform to the alteration in Chapter 1, of this Part."

[S14. Same as § 12 R. S. except that the second item was inserted by the legislature. Original note. "New. The compensation to these officers is now so small, that it is difficult to procure the necessary attendants upon the court. The fee proposed is similar to that allowed to criers in the supreme court, and seems to be equally just." [S 15. Same as § 14 R. S.] Original note. "Sixth and eighth items varied."

[S 16. Same as § 15 R. S. except that the allowance for attending before an examiner, &c. was inserted by the legislature. The allowances for abbreviating, &c. and for drawing charges or discharges, &c. were reported as "less than the present allowance."]

Original note to Item 2. [For drawing.] "The present allowance is twenty-five cents for every ninety words; at the same rate, the allowance for 100 words would amount to 28 cents, within the fraction of a mill."

Original note to whole §. "Act of 1818, p. 239, omitting the provision for disbursements, as it is contained in a general provision hereafter." [S 17. Enacted with alterations § 16 R. S.]

Original note. "Many of the preceding items are new in form, being taken from special provisions of existing laws, and made more general, in order to embrace similar cases. A few are new, in principle, and are supposed necessary to remunerate for new services enjoined in the course of the revision.

[$ 18. Same as § 17 R. S.]

Original note. "2 R. L. 15, varied by inserting the words in italic, which are generally within the spirit of the present act, but which it is deemed useful to enumerate specifically, 'Before referees.' There is now no specific provision for referees, 3 Cowen, 29, 'Enumerated motions.' Enumerated motions are those which are founded on the merits of a cause, such as motions to set aside reports of referees, &c. for which it seems but just that provision should be made; see 7 Cowen, 416. The latter part is new, but deemed necessary."

[$ 19. Same as 18, except that the trial fee in sub. 10, was reported "two dollars."]

Original note to Item 1. "2 R. L. 15, the residue of this subdivision omitted, as it is included in the general provision, in § 22 of this Title."

To Item 2. "New."

To Item 4. "The words in italics entries, bills of exceptions and