Jackson, ex dem. Porter and others, against Gale

Jackson, ex dem. Porter and others, against Gale. On re-taxation of costs in e^ectmeni, and ease made for argument, the following items allowed: Serving narr* Rule for remanal—atty’s fee on argument for each term at which noticed—dr.judgt. record, fol. 4, grid same in N. P. record—ji. fa. for costs—fee on serving writ pf possession, 'i^ptipaapd rule for argument disallowed. The plaintiff having recovered in ejectment, on verdict and a case made and argued, the commissioner had taxed . _ the following, among other items, m the Dill of costs : Serving narr. Si,00 Mo. and rule for argument, 68* Rule for t-emanet, 72* Atty’s fee on argument, (several terms,) 3,75 Drawing judgment record, fol. 4, at 19, 76 Sheriff’s fees on serving writ of possession, with aid, &c. 3,75 Ft. fa. for costs, 1?32 s ,J. C. Spencer, for the defendant, moved for a re-taxation. He did this, he said, principally with a view to the attorney’s fee on argument, which here amounted to a large sum, as the cause had been noticed for argument a great number of times, and an attorney’s fee charged for each term. He insisted, that the attorney would be entitled to but one fee on argument, and this for the term at which the cause was, in fact, argued. The phrase providing for the allowance of this fee, differs from the one which allows a fee to counsel. The latter is, attending prepared for argument—the former is, arguing, &c. (2 R. L. 15, 16.) A. Samson, contra. Curia. It is reasonable that this fee should be allowed for each term at which the cause is noticed for argument. The attorney attends, whether he succeed in reaching the cause on the calendar or not. The other items are correct, with the exception of that for serving writ of possession, which must he ‘educed to $1,25, and motion and rule for argument, which must be stricken out. The only objection against the fi.fa. for costs is, that it might have been incorporated into the writ of possession. This is true, but the party may also elect to proceed with it separately. Though the 4 folios are drawn for the nisi prius record, yet it is necessary to make another draft when the judgment roll comes to be framed. It is no objection that a similar charge was allowed in the nisi prius record. They are distinct instruments. Samson. The $3,75 were taxed by anticipation, on the ground that aid might be necessary in executing the writ of possession. It was thought that this should be placed at its highest, and a deduction made in the event of execution being executed in the ordinary way. [MAJORITY — Savage, Ch. J.] Savage, Ch. J. We cannot anticipate resistance to the ®Siper, so that aid will be necessary. Rule accordingly.