Where copy of minutes, the items thereof particularly, nor unless they appear to have been necessary, and reasonable in amount."22 If upon the trial of any cause any fact shall appear, which or certificate will entitle either party to double costs, or to costs in a case in which he would not otherwise be entitled to them; as, if of judge, re quisite. When defendant may to be taxed. the title to land shall come in question, or the plaintiff's claim shall be reduced by set-offs, or in an action of trespass, if the trespass shall appear to be malicious, it is provided, that "the judge or judges holding the court, shall, on the application of either party, either before or after verdict rendered, cause an entry to be made in the minutes of the court, specifying that such title came in question, or that such fact appeared; and no evidence shall be received by any taxing officer, of such matter, other than a certified copy of such minutes, or the certificate of the judge or judges who tried the cause."23 Upon the settlement of an execution by a defendant, or uprequire costs on settling any suit or demand, it is the duty of the sheriff or attorney, claiming any fees which shall not have been taxed, upon being required by the defendant, and on his paying the ⚫ expense thereof, to have his fees taxed by some proper officer of the court, in which the action may be pending, or from which the execution shall have been issued ; and it is provided, that "no sheriff or attorney shall collect any fees, after having been required, as aforesaid, to have the same taxed, without such taxation having been made."'24 Appeal to court. "If either party is dissatisfied with the taxation of costs, he may appeal to the court25 by motion, founded on notice, and 23 Ib. s. 7. 23 Ib. s. 8. This was the rule adopted by the supreme court in cases where the title to land came in question. 2 Caines' Rep. 220. 11 Johns. Rep. 405. 5 Cowen. Rep. 28. 1 Johns. Rep. 146. It 25 I Cowen. Rep. 591. 15 Johns. Rep. 239. an affidavit, stating wherein he considers himself aggrieved, and the court will either correct the bill as to the erroneous items, or refer the whole for retaxation, as circumstances may require; but the court will not pass upon a bill until it has first been taxed by a proper officer.2 26 two terms. Party not at. After the lapse of two terms, at which the party might have Lapse of applied for a retaxation of costs, the court will not interfere, although there are exceptionable items in the bill.27 And where notice of taxation is regularly served, if the opposite party do not appear and contest the taxing, his not doing so will he considered as a waiver of all objections, and the court will not afterwards order a retaxation.28 Nor will the court hear a motion to retax a bill of costs on a point not made before the taxing officer.29 Where, on application to the court, there is no proof that the witnesses did not attend, as charged in the bill, the court will intend, in the absence of evidence to the contrary, that the taxing officer had due proof of their attendance.So tending. court of er This court has no authority to order a retaxation of costs, Taxation in taxed in the court of errors by the chief justice, as judge and rors. taxing officer of that court.31 collected. The final costs may either be collected by execution, or by How costs action upon the judgment: but interlocutory costs are only recoverable by attachment, unless there has been an express promise to pay them.101 people. It is provided by statute, that "whenever costs shall be ad- Costs against judged against the people of this state, in any civil suit or proceeding, instituted by any officer duly authorised for that purpose, it shall be the duty of the comptroller to draw on the treasurer for the amount thereof, upon the production of an authenticated copy of the record of judgment, or of the order adjudging such costs, with a taxed bill thereof, and upon a certificate of the attorney-general, that such suit or proceeding was duly instituted, as by law required."52 32 R. St. P. 3. Ch. 8. T. 17. s. 14. Vol. 2. p. 553. CHAPTER X. OF AMENDMENTS. in paper. Whilst the proceedings are in paper, that is, before they are entered on the record, they are amendable at common law, independent of the statute allowing amendments.1 This power Proceedings of the court is now recognised and declared in general terms by the legislature: it is provided, that "the court in which any action shall be pending, shall have power to amend any process, pleading, or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as shall be just, at any time before judgment rendered therein.”” Various instances in which these amendments are allowed, have been noticed in different parts of the work. In the present chapter our attention will be confined to amendments, after the proceedings have been entered on the record. 3 It is not proposed to notice all the particular amendments which the courts have allowed whether under the discretionary powers granted to them by statute, or by virtue of their general authority. Such an inquiry, to be intelligible and useful, would involve an examination of many questions of pleading and collateral matters, which would swell this chapter to a great length, without any corresponding benefit. A brief consideration of the general rules and statutory regulations, with occasional illustrations, is all, it is conceived, that would be 12 Wilson. 148. Gilb. C. P. 114. 2 R. St. P. 3. Ch. 7. T. 5. s. 1. Vol. 2. p. 424. 3 See R. St. ib. s. 4. 1 R. L. p. 177. 118. s. 1. Want of writ. Defect in process. : here proper and this more especially, as the present title, "of amending pleadings and proceedings," so far differs from the English statutes, and our former act, "concerning amendments and jeofails," that the application or authority of many cases may be very questionable. Many amendments which. are allowed, or defects which are cured by statute, have been, or will be, noticed in connection with the subjects to which they immediately relate. By the fourth section of the title before referred to, it is provided in general terms, that "after judgment rendered in any cause, any defects or imperfections, in matter of form, contained in the record, pleadings, process, entries, returns or other proceedings in such cause, may be rectified and amended by the court, in affirmance of the judgment, so that such judgment shall not be reversed or annulled; and any variance in the record, from any process, pleading or proceeding, had in such cause, shall be reformed and amended, according to such original process, pleading or proceeding." 994 The seventh section, of the same title, which embraces the substance of the provisions of the former act concerning amendments and jeofails, enumerates various defects by reason of which no judgment shall be affected or impaired. It provides, that "when a verdict shall have been rendered in any cause, the judgment thereon shall not be stayed, nor shall the judgment upon such verdict, or any judgment upon confession, default, nihil dicit, or non sum informatus, be reversed, impaired, or in any way affected by reason of the following imperfections, omissions, defects, matters or things, or any of them, in the pleadings, process, proceedings or record, namely: 1. For want of any writ, original or judicial: 2. For any default or defect in process; or for misconceiving any process, or awarding the same to a wrong officer; or for the want of any suggestion for awarding process; or for any insufficient suggestion : 4 R. St. P 3, Ch. 7. T. 5. s. 4. Vol. 2. p. 424. |