Alcott et al. against Phelps

Alcott et al. against Phelps. In assumpsit, where the recovery is less than $250, the nisi prius record is to be taxed by the folio, allowing at the common pleas rate: The record and execution, at the same sum in gross allowed by the common pleas bill, without any additional allowance for the greater length of the continuances. Where services are similar,. in both courts. the charges are the same. Where the service here is unknown in the common pleas, the charge is at the common pleas rate per folio. Assumpsit, and judgment for the plaintiff. The damages' being less than $250, Mr. Breese, the Clerk, refused to tax the following items in the plaintiff^ bill of costs : These were taxed gross, at §2j25, K This was taxed at 25 cents in gross. 1. Dr. N. P. record, fol. 4, and dr. continuances on the same, fol. 11, at 125 cents, 2. Engrossing same, with pleadings, fol. 24, at 6 cents, '3. Dr. judgment record, fol. 4, at 125 cents, 4. Dr. entries on roll, after issue joined, exclusive of judgment, fol. 9, at 125 cents, 5. Engrossing judgment, entries and pleadings, fol. 24, at 6 cents, 6. Dr. testatum execution, fol. 6, at 121 cents, engrossing at 6 cents, seal, -6 cents, $1,875 1.44 50 1,375 1.44 1,18 Mr. A. Sampson, appealed from this taxation. He perceived, by a note to the rules, {Gould?$ ed. of 1818, jo. 93) that under the old act,, contained in Kent c$- Radcliff,s revision.,, {vol. 1, p. 529) no charge could be taxed, unless a. like charge, for a like service, would have existed and been taxable in the Common Pleas ; which would exclude the two first charges in this bill. That note stands, in the latest edition, of the rules, unrepealed; though he conceived these charges proper, under the new act. (1 R. L. 344, sec. 4.) The phraseology of the two acts differs, and the old rule of interpretation is inapplicable to the last act. 2 R. L. 23. 5) id. id. 24. Sess. 41, ch. 259, s. 13. [MAJORITY — Curia.] Curia. This section authorizes you to have all necessary services taxed, at the Common Pleas rate. The nisi prius record is a necessary service, and should have been taxed. Sampson. For the four last charges, Mr. Breese has allowed us the Common Pleas charges for a judgment and execution. Are we not entitled to our folio in these 2 J. A. Spencer, amicus curios, in the Common^ Pleas, a general continuance is authorized by the statute. In this Court full continuances are required. Do they not, then, come under the provision allowing for necessary services ? J. C. Spencer, for the defendant, said that as ,to a judgment record and execution, the statute had established a rate for the Common Pleas, but not so as to the nisi prius record, for which nothing ought to be allowed. Curia. The two first items must be allowed as charged. The four last were correctly taxed by the Clerk. Where the recovery, as here, is under 250 dollars, the charges for similar services are the same in both Courts. Thus, a capias, subpoena, judgment record, and execution, are taxed at the same in both Courts. But where the service here is unknown in the Common Pleas, it is allowed for by the folio, at the Common Pleas rate of charge for folios there, within the clause of the statute allowing for necessary services. Rule accordingly». Sec. 4,1 R. L. 23.