has not appeared. What costs are allowed, when debt amounts to 201. and upwards. When sum recovered, &c. does not ex out costs. necessary, in any case where the defendant has not appeared in person, or by his attorney or guardian, notwithstanding the general rule of Trinity term 1 W. IV. § 12." On this rule it has been holden, that the defendant, having done what was equivalent to appearing, is entitled to a notice of taxation of the plaintiff's costs; but an omission of such notice is not sufficient to induce the court to set aside a judgment and subsequent proceedings *. It has been already seen, that in actions to which the rule of Trin. 1 W. IV. for shortening declarations applies, if the debt amount to 20l. and upwards, and the declaration is under twenty-four folios, the officer who taxes the costs is authorized to allow for declaration, including instructions, copy and delivery, 1l. 18s. ; and for close copy, in country causes, according to length. The taxing officer is also authorized, according to the regulations adopted by all the courts in the above actions, to allow for interlocutory judgment, including rule to plead, searching for and demanding plea, drawing judgment, incipitur, entering on the roll, docket, and attending to sign judgment and to docket, 17. 11s. 4d.; and for attending to tax, 6s. 8d. But the above regulations are not to extend to cases in which several actions are brought on the same bill or note, against several parties thereto And the taxing officer may allow at his discretion, to a plaintiff or defendant, all such costs as shall reasonably have been incurred by him after commencement of suit, notwithstanding the same may be such as may not heretofore have been allowed between party and party: But he is not authorized to allow more than one opinion on evidence, by one barrister or pleader, and one consultation; and the sum allowed for drawing all issues, in fact or in law, in all the courts, is eight pence per folio d. By subsequent directions, given by the courts to their taxing officers in Hilary term 4 W. IV. e it is declared, that "in all actions of ceed 20l. with- assumpsit, debt, or covenant, where the sum recovered, or paid into court and accepted by the plaintiff in satisfaction of his demand, or agreed to be paid on the settlement of the action, shall not exceed 201. without costs, the plaintiff's costs shall be taxed according to the reduced scale thereunto annexed: Provided, that in case of trial before a judge in one of the superior courts, or judge of assize, if Lloyd (or Loyd) v. Kent, 5 Dowl. f For the mode of taxing costs, as be− tween attorney and client, see Tidd Prac. 9 Ed. 335, 6. d Chapm. Bills of Costs, 1832. p. 1. 12. e 2 Dowl. Rep. 485. Chapm. K. B. 3 Addend. 132, &c. the judge shall certify on the postea, that the cause was proper to be tried before him, and not before a sheriff or judge of an inferior court, the costs shall be taxed upon the usual scale." These directions seem to extend to writs of inquiry; upon which it has been customary, where damages are given to a less amount than 20%., to tax costs according to the reduced scale prescribed therein. And where the writ having been issued for more than 201., the plaintiff before execution, judgment having been signed as for want of a plea, had given credit for a cross demand, reducing the amount of his claim to 17., the court held that the costs should be taxed on the reduced scale b. But where a plaintiff had recovered by verdict a sum of money beyond another sum paid into court, the two sums together amounting to more than 207., the court held that the taxation of costs ought not to be on the reduced scale c. On the above proviso it has been determined, that it is not necessary for the judge who certifies to hear the cause throughout, in order to enable a plaintiff to obtain full costs d. And there is no specific time for giving the certificate of the cause being proper to be tried before a superior judge; but the certificate may be given at any time e. By the above directions it is required, that "at the head of every bill of costs, taken to the taxing officer to be taxed, it shall be stated whether the sum recovered, accepted, or agreed to be paid, exceeds the sum of 201. or not, in the following form: "Debt above twenty pounds," or "Debt twenty pounds, or under." And it is thereby declared, that "three shillings and four pence shall be allowed for drawing the judgment in all cases; that the officers of the court of Exchequer are to allow no incipiturs of judgment upon paper, and are to mark the costs upon the posteas; that every brief sheet is to contain eight folios at the least, which are to be paid for at the rate of 6s. 8d. per sheet for drawing, and Ss. 4d. for copying; such parts of the briefs only as are really drawn to be allowed as drawing, the rest to be allowed as copying that the allowance to witnesses for travelling is to be only the sum actually paid, and that not exceeding one shilling per mile, except under special circumstances; and that no fee to counsel is to be allowed on writs of trial, except trials before the judge of the sheriff's court of London, or of other courts of record, where attornies are not allowed to prac a Hoopell (or Hoppell) v. Leigh, 3 Scott, 188. 2 Hodges, 107. 5 Dowl. Rep. 40. 12 Leg. Obs. 245. S. C. Savage v. Lipscombe, 13 Leg. Obs. 456. Patteson, J. dissentiente. Masters v. Tickler, 2 Har. & W. 81. 4 Nokes v. Frazer, 3 Dowl. Rep. 339. Burchell v. Clark, 9 Leg. Obs. 330, 31. e • Ivy v. Young, 13 Leg. Obs. 381. Reviewing taxation. tise, and then one guinea only." The fees to be allowed to counsel's clerks are also specified in these directions; to which three schedules are annexed; 1st, of the costs to be allowed from the commencement of the suit to the notice of trialb; 2dly, the subsequent costs, where the cause is tried before the sheriffe; and 3dly, where it is tried at nisi prius, and there is a verdict for 201. or under d. If either party be dissatisfied with the allowance of costs, he may apply to the court for a rule to shew cause, why the master or prothonotaries should not review their taxatione: And where an attorney had charged for a declaration as containing more folios than it really contained, and this charge was allowed by the master, the court of King's Bench held it to be a good ground for reviewing the taxation. But the affidavit in support of the rule must be confined to the objections alleged against the taxation, and not enter into the merits of the cause : And although the master, on taxation of costs as between attorney and client, has not jurisdiction to determine whether acts done by the attorney were useful, yet he may determine what were necessary. In the Exchequer, a motion to review the master's taxation must be supported by an affidavit, that the master has made his allocatur: And an affidavit to ground an order nisi for the master to review his taxation, on the ground of overcharge, must point out the specific items thereof, and shew that they were erroneous k. And no objections to the master's taxation can be entertained, unless they are specified in the affidavit, or rule'. In that court, affidavits used before the master on taxation of costs, cannot be read, on shewing cause against a rule for reviewing the taxation, unless they are referred to in the rule; and notice that they will be used, is not sufficient m. And costs of a rule for reviewing a taxation are not given, where the mistake is with the master ". a 2 Dowl. Rep. 486, 7. Chapm. K. B. 3 Addend. 182. b2 Dowl. Rep. 487. c Id. 487, 8, 9. d Id. 489, 90. And for bills of costs, made out by one of the taxing officers, in pursuance of these directions, see Chapm. K. B. 3 Addend. 134, &c. And for the general charges, as allowed on taxation in all the courts, for writs, attendances, affidavits, pleadings, instructions, notices, and rules, ingrossing, copying, term-fee, and to counsel's clerks, see id. 175, &c. e Tidd Prac. 9 Ed. 990. f Morris v. Hunt, 1 Chit. R. 544. 1 Cleaver v. Hargrave, id. 689. Daniel v. Bishop, M'Clel. 61. 13 1 Aliven v. Furnival, 2 Dowl. Rep. 49. CHAP. XLI. WRITS of EXECUTION; and the LIABILITY, and IN the present Chapter it is proposed to consider, 1st, the time of suing out writs of execution; 2dly, out of what courts they issue; 3dly, their teste and return, &c.; 4thly, the liability of sheriffs and their officers, to answer for the value of goods taken in execution; and 5thly, the relief they are entitled to, under the interpleader act, in execution of process against goods and chattels. out execution, on writs of in nary cases. We have already seen, that by the speedy judgment and execu- Time of suing tion act b, "execution may be issued forthwith, at the return of a writ of inquiry in ordinary cases, which may be made returnable and quiry, in ordireturned on any day certain, in term or vacation, to be named in such writ, unless the sheriff or other officer, before whom the same may be executed, shall certify under his hand, upon such writ, that judgment ought not to be signed, until the defendant shall have had an opportunity to apply to the court to set aside the execution of such writ, or one of the judges of the said courts shall think fit to order the judgment to be stayed, until a day to be named in such order". We have also seen, that by another clause of the same On nonsuit, or statute f, "in all cases where the judge before whom the issue is tried, shall, in case the plaintiff shall become nonsuit, or a verdict shall be given for the plaintiff or defendant, certify 8 under his hand, on the back of the record, at any time before the end of the sittings or assizes, that in his opinion execution ought to issue forthwith, or at some day to be named in such certificate, and subject or not to any condition or qualification, and in case of a verdict for the plaintiff, then either for the whole or for any part of the sum found by g For the form of a judge's certificate a certificate may be granted thereon, vide verdict. such verdict, execution may be executed forthwith, or afterwards, according to the terms of such certificate, on any day in vacation or term. Provided, that nothing in that act contained shall be deemed to frustrate or make void any provision relating to the issuing of any writ of habere facias possessionem, contained in the act passed in the first year of the reign of his present Majesty, intituled an act for the more effectual administration of justice, in England and Wales." a It should also be remembered, that by the law amendment act", "execution may be issued forthwith, at the return of the writ of inquiry for assessing damages on the statute 8 & 9 W. III. c. 11. § 8. (which applies also to the writ for the trial of issues before the sheriff, or judge of a court of record,) unless the sheriff, or his deputy, before whom such writ of inquiry may be executed, or such sheriff, deputy, or judge before whom such trial shall be had, shall certify under his hand, upon such writ, that judgment ought not to be signed until the defendant shall have had an opportunity to apply to the court, for a new inquiry or trial, or a judge of any of the said courts shall think fit to order that judgment or execution shall be stayed till a day to be named in such order." Writs of execution are judicial writs, issuing out of the court where the record is, upon which they are grounded c. And therefore, when the record or transcript of the proceedings is removed into any of his majesty's courts of record at Westminster, from a county palatine, or from an inferior court, by certiorari, under the statute 19 Geo. III. c. 70. § 4.4, or 33 Geo. III. c. 68. § 1.a, the execution issues out of the superior court. And by the late act, for improving the practice and proceedings of the court of Common Pleas of the county palatine of Lancaster®, it is enacted, that "whenever a plaintiff or defendant in any action or suit, in which judg"ment shall be recovered in the said court of Common Pleas at Lan"caster, shall remove his person, or goods or chattels, from or "out of the jurisdiction of the same court, it shall and may be "lawful for any of the superior courts at Westminster, upon a cer"tificate from the prothonotary of the said court of Common Pleas "at Lancaster, or his deputy, of the amount of final judgment ob"tained in any such action, to issue a writ or writs of execution 66 |