Lamb v. Coe

19 Wend. 127

Opinion

On motion for retaxation of costs, the following points were decided by Mr. Justice Bronson :

1. When a witness does not reside in the place where the court is held, he is entitled to an allowance for one day in coming to and one day in reluming from the place of attendance, altough his residence is only eight miles from the court house. The chancellor has given a different rule, 2 Paige, 465 ; but the question was settled in this court several years since.

2. Attorney’s fee for attending prepared for the argument of a bill of exceptions, &c. pursuant to notice from the adverse party, is a proper charge, although the attorney does not actually attend. Wilson v. White, 2 Wendell, 265, The change of phraseology in the present statute, 2 R. S. 633, has not altered the rule which prevailed under the old law

3. On the trial, the plaintiff took a bill of exceptions, and „ the verdict was for the defendant, in whose favor judgment was finally rendered. The taxing officer allowed for entering the bill of exceptions on the judgment record. A like charge was disallowed in Green v. Green, 1 Wendell, 102; but, under the former statute, it was not the practice to incorporate the bill of exceptions in the record. Under the present statute, it has been held by the court for the correction of errors that the bill should be incorporated in the record. If the plaintiff did not wish to bring error, he should have given notice that he waived the right to have the bill inserted in the record. As such notice was not given, the charge was properly allowed.