Wallace and La Tourette agt. Eaton and others. It becomes important, therefore, to inquire whether we can determine the controversy between these plaintiffs and defendants without prejudice to the rights of the said Kelsey, or by saving his rights. If we can this demurrer is not well taken for a defect of parties; and if we can not the demurrer is well taken. I am inclined to think had the plaintiffs made Eaton & Spicer alone defendants, and sought no other relief in this suit than to have the transfer or sale of the property to the defendants, Eaton & Spicer by Kelsey, declared fraudulent, and that they be decreed to account for the property received by them, that the court might have granted the relief, without the necessity of bringing in Kelsey as a party; but they also ask to remove the defendant Larned for a breach of his trust duties as assignee; or for a total neglect of those duties, and to have a receiver appointed by the court with the usual powers of receivers in such cases. Now it seems to me that it would be an unheard of proceeding to be conducted ex parte or without any notice to the debtor, Kelsey, who is to be so seriously affected by such a proceeding. He has a right to be heard upon the application to remove his chosen trustee and also upon the appointinent of a receiver by this court who is to come in and take his place, or rather to take all of his property with the usual power of receivers in such cases. This demurrer therefore is well taken for the first cause of demurrer assigned. It is not, therefore necessary to consider the other questions raised by the demurrer; for there must be judgment for the defendants upon the demurrer, with leave to the plaintiffs to amend their complaint upon the payment of costs; and they may amend by bringing in the defendant Kelsey; or they may amend if they be so advised, by striking out the defendant Larned, and all that part of the complaint in relation to the assignment to him by Kelsey or such parts thereof as they may be advised. And in case this is done, the suit may be left to stand against the defendants, Eaton & Spicer alone, without bringing in Kelsey. Tracy agt. Stone and two others. SUPREME COURT. TRACY agt. STONE AND TWO OTHERS. Where in action for libel, two defendants defend by the same attorney and answer separately and verdict and judgment are given in their favor, but one bill of costs and one set of charges can be allowed on adjustment by the clerk. Albany Special Term, August 1850. This was an action for libel. All the defendants appeared by one attorney, but two of them put in separate answers. On the trial of the cause, a verdict was rendered for the defendants. The defendants' attorney made out two separate and full bills of costs which were allowed on adjustment by the clerk, the one bill at $157 37 and the other at $117-25. The plaintiff moved for a readjustment of the costs. H. G. WHEATON, for Plaintiff. I. EDWARDS and S. STEVENS, for Defendants. PARKER, Justice. The clerk was wrong in allowing two bills of costs. Where the defendants appear by the same attorney, there can be but one bill of costs. Such was the rule under the late practice; though formerly, when the defendants necessarily pleaded separately and where different witnesses were needed, the specific allowances for such additional pleadings and for such different witnesses were taxable in the bill of costs. But under our present system, there being no specific compensation for an additional answer, no charge could be made for it. The defendants in this case could have but one bill of costs. In that they could include fees for all the witnesses who attended for either defendant and every other item allowed by the code, for an expense that either defendant had separately and necessarily incurred. But there could be but one set of charges for those services which are performed by the attorney or counsel. The witnesses were entitled to but single fees, though they may have attended to prove different facts for each defendant; and the disbursements could not be twice charged. It had been urged that the adjustment made by the clerk in this case was proper, because The People agt. Wilkes. the compensation under the Code now belongs to the party and not to the attorney; that therefore the former practice was changed and each one of the successful parties defendant was entitled to a full and exclusive bill of costs. This reasoning would give costs to each of the successful defendants, as well where they unite, as where they separate, in their defence. In a suit against twenty persons, defending by one attorney and uniting in one answer, it would give to each defendant a separate and full bill of costs. Such a construction could not have been intended and can not be tolerated. The statute now gives " to the prevailing party upon the judgment, certain sums by way of indemnity for his expenses in the action" (Code §303), and prescribes what such allowances shall be. It can not be supposed the defendants will pay their attorney double fees for attending circuit when the cause was not reached, or for any other service, because there are two defendants. Such charges are not necessary to their "indemnity." There must be a readjustment of the costs before the clerk and it can best be done by making out a new bill and serving copy and notice of adjustment. Motion granted without costs. SUPREME COURT. THE PEOPLE agt. WILKES. A defendant can not be legally tried upon an indictment for any offence in his absence, unless he has unequivocally waived his right to be present and distinctly and expressly authorized or substituted an attorney to appear for him. No general authority of attorney or counsel will authorize an appearance on such a trial. It is otherwise in civil actions. Dutchess Oyer and Terminer, Oct. 1850. Motion for new trial on the ground that defendant was irregularly tried in his absence.. T. C. CAMPBELL, Dist. Att'y for People. J. VAN BUREN, J. SMITH and Mr. SICKLES, for Defendant. The People agt. Wilkes. By the Court, BARCULO, Justice.-The affidavits show that the defendant was indicted in March last for publishing a libel upon Mr. Jordan late attorney general of the state; that he appeared and put in a plea of not guilty, by Mr. Dean his attorney, of this county; that Mr. Dean was employed to watch and attend to the cause, and was present and assented to its being set down for the day on which it was tried. It further appears that the defendant had employed counsel in the city of New York to attend the trial, and that such counsel was prevented from attending by sickness, and that the counsel here was not put into possession of the information and means necessary to a defence. The cause was brought to trial on the 24th September, in the absence of the defendant. Mr. Dean appeared for the defence and requested a postponement, but was not possessed of any affidavits to ground a motion upon. The cause therefore proceeded, and after the evidence had been given and the cause summed up by the respective counsel, the jury rendered a verdict of guilty. The defendant now swears that Mr. Dean was not authorized to for him on the trial in his absence. appear I am entirely satisfied that Mr. Dean was employed by the defendant as his attorney and counsel in the cause generally; and that he was authorized to do all that he could fairly do to defend his client. No blame is, or can be, properly, attached to him for assuming any powers not delegated to him. I am also satisfied that no sufficient reason was shown to the court to postpone the trial of the cause, and that it was fairly and regularly conducted in all respects if the defendant was legally present. If, therefore, the case had been a civil one, or one in which the appearance of an ordinary attorney would suffice, there could be no plausible pretext assigned for disturbing the verdict. But I am not satisfied that the statute has been complied with. On the contrary, the question not having been raised or suggested on the trial, its precise terms were overlooked. It was assumed that a defendant indicted for a misdemeanor would appear by attorney, and that the attorney present had the legal authority. Common practice sanctioned the assumption. Gay agt. Paine and Paine. The Revised Statutes, however, have changed the rule of the common law, which seemed to authorize the trial of the defendant in his absence, if he had once appeared (4 Black. 375). Our statute provides (2 R. S. 734, § 13), that no person indicted for any offence can be tried unless he be present either personally or by his attorney duly authorized for that purpose. This act is broad and explicit. It intends that the defendant shall be present, and not be tried in his absence, unless he elects to substitute some attorney, expressly, to appear for him. The provision is not satisfied with an implied authority. It requires something more than a general attorney in the cause. It is no part of the general or implied duty of an attorney to appear in the absence of the defendant on his trial. There must be a distinct and express authority over and above any general authority as attorney or counsel in the cause; there must be an unequivocal waiver of his right to be present on his trial before the defendant can legally be tried in his absence. Nothing short of this will satisfy the words “duly authorized for that purpose." No such authority existed in the present case. The verdict must, therefore, be set aside and a new trial ordered. SUPREME COURT. GAY agt. PAINE and PAINE. 5 How 107-OVERRULED, 1 Keyes 228. It is not necessary, to charge an endorser, to aver a presentment and demand Such a demand was, by authority, settled to be a condition precedent under the Herkimer Special Term, Sept. 1850. Demurrer to complaint against the indorsers of a promissory note, because "it does not state facts sufficient to constitute a cause of action." The note declared on was payable at the Albany City Bank, and the defect |