part and reversed in part, the respondent was allowed
his costs in the Court below, but made to pay the costs
of the appeal.-Cole vs. Swanston, 1 Cal., p. 51. The
costs upon appeal are, properly, the costs in this Court,
and the cost of making up the appeal in the Court
below, including the cost of making out the transcript.
The costs of the former trial are not included, but abide
the event of the suit.-Gray vs. Gray, and Eaton vs.
Palmer, 11 Cal., p. 341. Where a judgment of the
Court was incorrect in part, and its judgment accord-
ingly modified, the appellants recover the costs of their
appeal.-Welch vs. Sullivan, 8 Cal., p. 512. The per-
son who is responsible for the erroneous proceedings,
after the remittitur was sent down from the Supreme
Court, must pay the costs of those proceedings, and
the costs consequent on a second appeal caused by
them.-Argenti vs. City of San Francisco, 30 Cal., p.
458. When the case is remanded by the Supreme
Court for further proceedings, and costs are awarded
in general terms, the costs awarded include only the
costs made on the appeal to the Supreme Court. The
costs of the former trial are not included, but abide
the event of the suit.-Ex Parte Burrill et al., 24 Cal.,
p. 350; Gray vs. Gray, 11 Cal., p. 341. If the printed
transcript in the Supreme Court is unnecessarily long,
the party who is to blame for this will be adjudged to
pay the costs of printing thus unnecessarily incurred,
or a share thereof.-People vs. Holden, 28 Cal., p. 129.
Action in which each party made to pay his own costs
on appeal.-See Bradbury vs. Barnes, 19 Cal., p.
120. In which costs of motion in Supreme Court not
allowed.-Swain vs. Naglee, 19 Cal., p. 127. In which
appellant paid costs in Supreme Court.-Jungerman
vs. Bovee, 19 Cal., p. 354. In which appellant made
to pay costs, although the judgment is reversed.-
Reniff vs. Cynthia, 18 Cal., p. 669. Judgment affirmed
as to a mandamus, but reversed as to costs.-Mc-
Dougall vs. Roman, 2 Cal., p. 80. Costs on partial
success. See Brooks vs. Calderwood, 34 Cal., p. 563.

fees.

1028. (§ 504.) The fees of referees are five dol- Referee's lars to each for every day spent in the business of the reference; but the parties may agree, in writing, upon any other rate of compensation, and thereupon such rates shall be allowed.

99-VOL. I.

Continuance, costs may be

imposed as condition

of.

Costs when

a tender is made

brought.

1029. (§ 505.) When an application is made to a Court or referee to postpone a trial, the payment of costs occasioned by the postponement may be imposed, in the discretion of the Court or referee, as a condition of granting the same.

1030. (§ 506.) When, in an action for the recov before suit ery of money only, the defendant alleges in his answer that before the commencement of the action he tendered to the plaintiff the full amount to which he was entitled, and thereupon deposits in Court, for plaintiff, the amount so tendered, and the allegation be found to be true, the plaintiff cannot recover costs, but must pay costs to the defendant.

Costs in

action by

an adminis

trator, etc.

NOTE. If tender was made of the amount due before action and kept good during action, the judgment should be for plaintiff, but the defendant is entitled to costs.-Curiac vs. Abadie, 25 Cal., p. 502. Defendant must not only plead tender before the suit brought, but that he has always been and now is ready and willing to pay the same, and the money should be brought into Court.-Bryan vs. Maume, 28 Cal., p. 239. The tender can be made only by a party in interest.— See Mahler vs. Newbauer, 32 Cal., p. 168. On the subject of tender generally, see Civil Code, Sections 1485-1505, and notes. The rules heretofore existing, as to the effect of offer of performance, are somewhat modified, and in many respects altogether changed.

1031. (§ 507.) In an action prosecuted or defended or against by an executor, administrator, trustee of express trust, or a person expressly authorized by statute, costs may be recovered as in action by and against a person prosecuting or defending in his own right; but such costs must, by the judgment, be made chargeable only upon the estate, fund, or party represented, unless the Court directs the same to be paid by the plaintiff or defendant, personally, for mismanagement or bad faith in the action or defense.

NOTE.-Executors and administrators are individually responsible for costs recovered against them; but they must not be reimbursed for such costs in their

administration accounts, unless it appears that the
action has been prosecuted or resisted without just
cause.-Hicox vs. Graham, 6 Cal., p. 169.

1032. (§ 508.) When the decision of a Court of inferior jurisdiction in a special proceeding is brought before a Court of higher jurisdiction for a review, in any other way than by appeal, the same costs must be allowed as in cases on appeal, and may be collected by execution, or in such manner as the Court may direct, according to the nature of the case.

NOTE. It will be observed that Sec. 509 of the old Practice Act has been omitted. This was intentional, and the tax heretofore known as the Court tax is no longer a cost charge.

1033. ($ 510.) The party in whose favor judgment is rendered, and who claims his costs, must deliver to the Clerk of the Court, within two days after the verdict or decision of the Court, a memorandum of the items of his costs and necessary disbursements in the action or proceeding, which memorandum must be verified by the oath of the party or his attorney, stating that the items are correct, and that the disbursements have been necessarily incurred in the action or proceeding.

NOTE. This section has been held not to apply to costs on appeal to the Supreme Court.-Gray vs. Gray, 11 Cal., p. 341. If the opposing party fail to file his cost bill, or to give notice within the proper time, the vacation of the judgment is not on that account absolute.-Gregory vs. Haynes, 21 Cal., p. 443. If items are included in the bill of costs which are not properly taxable, the party should move to amend or retax the costs, and no just grounds are afforded for refusing to issue an execution or recalling one.-Meeker vs. Harris, 23 Cal., p. 285. If the original bill of costs is filed within the time prescribed, an amendment allowed after the time relates back to the time of filing, and forms a part of the original. An affidavit by the attorney of the party accompanying the bill of costs is good.—Burnham vs. Hays, 3 Cal., p. 115. A memorandum of the costs should be filed in the office of the Clerk of the Court below at the time of filing the

Costs in a

review

other than

by appeal.

Filing of
vit to bill

and affida

of costs.

Costs on appeal,

how

claimed and

recovered.

Interest
and costs
must be

included by
the Clerk
in the

remittitur there, or within the time specified by the statute thereafter.-Ex Parte Burrill et al., 24 Cal., p. 350; see, also, Eaton vs. Palmer, 11 Cal., p. 341. The Court cannot add to the judgment the costs of the prevailing party after the time for filing the same has expired, and after an appeal has been perfected. If it does so, the proper and only remedy is by an appeal from the order.-Jones vs. Frost, 28 Cal., p. 245. If the costs on appeal are not entered on the judgment docket in the Court below, they are not a lien on property until the levy of an execution. Or if the Clerk's and Sheriff's fees were inserted in the judgment, when not so claimed, the judgment is so far void, and may be attacked collaterally.-Chapin vs. Broder, 16 Cal., p. 403.

1034. (§ 665.) Whenever costs are awarded to a party by an appellate Court, if he claims such costs, he must, within thirty days after the remittitur is filed with the Clerk below, deliver to such Clerk a memorandum of his costs, verified as prescribed by the preceding section, and thereafter he may have an execution therefor as upon a judgment.

NOTE. On the request of the successful party the Clerk of the Court below must issue an execution for the costs included in the memorandum, and the costs of the Clerk of the Supreme Court as certified by him on the remittitur.-Ex Parte Burrill et al., 24 Cal., p. 350; Mayor of Marysville vs. Buchanan, 3 Cal., p. 212; People vs. Jones, 20 Cal., p. 51. Where a judgment is against two, one only of whom appeals, and the appeal is dismissed with twenty per cent damages, the damages with the costs are not a part of the original judgment, and the redemptioner is not bound to pay them on redemption from a sale under the judgment. The Clerk below can issue execution for the damages and costs.-McMillan vs. Vischer, 14 Cal., p. 241.

1035. (§ 511.) The Clerk must include in the judgment entered up by him, any interest on the verdict or decision of the Court, from the time it was judgment. rendered or made, and the costs, if the same have been taxed or ascertained; and he must, within two days after the same are taxed or ascertained, if not included in the judgment, insert the same in a blank

left in the judgment for that purpose, and must make a similar insertion of the costs in the copies and docket of the judgment.

NOTE.-A judgment can properly bear interest only from the time it is pronounced. If there be interest due on the demand on which the action is brought, it should be included in the judgment when entered.— Bipend vs. L. & L. F. & L. Ins. Co., 30 Cal., p. 78. Where the judgment of the Court below is reversed, and the case remanded for further proceedings, and costs are awarded in general terms, the costs awarded include only the costs made on the appeal to the Supreme Court. The costs of the former trial abide the event of the suit. The Clerk of the Court below can issue an execution for the costs included in the memorandum and the costs as certified by the Clerk of the. Supreme Court on the remittitur.-Ex Parte Burrill et al., 24 Cal., p. 350. Costs constitute a part of the judgment, and though ascertained and adjudged by the Court after an entry of the judgment by the Clerk may have been made, yet the law considers such action of the Court as having preceded the final judgment.Lasky vs. Davis, 33 Cal., p. 677. After a judgment is entered and the record completed, the Clerk has no power to fill up the blank left for costs. The Court alone is competent to relieve, by amendment, where costs are omitted.-Chapin vs. Broder, 16 Cal., p. 403. Without any express contract in writing, made by the testator, providing for a higher rate of interest than ten per cent per annum, the executors have no authority to consent to the entry of a judgment bearing a greater rate of interest than ten per cent per annum; and must be charged with the excess of interest in their final account.-Matter of Estate of Isaacs, 30 Cal., p. 105. In ejectment, if the plaintiff recovers judgment he is entitled to full costs, notwithstanding he recovers a less interest than he sued for.-Havens vs. Dale, 30 Cal., p. 547. And although the answer admitted his right to the interest recovered, but raised an issue on the question of the ouster from the part recovered.Lawton vs. Gordon, 37 Cal., p. 203.

1036. (§ 512.) When the plaintiff in an action

When plaintiff is

a non-resi

dent, or poration,

foreign cor

defendant

be may

resides out of the State, or is a foreign corporation, security for the costs and charges, which may awarded against such plaintiff, may be required by for costs.

require security