If the articles are ponderous, the referee should designate a time for the debtor to attend at the place where they are situate, and deliver the same to the receiver. Ib.

When the debtor is entitled to exemption, the referee should, in his direction for the delivery of the debtor's household furniture, specify and except, as otherwise designated, the furniture which is to be left with the debtor, as being exempt. Ib.

§ 301. [256.] (Amended 1849.) Existing suits. Costs of proceeding. The judge may allow to the judgment creditor, or to any party so examined, whether a party to the action or not, witnesses' fees and disbursements, and a fixed sum in addition, not exceeding thirty dollars, as costs.

The application for costs, under this section, cannot be made until the proceedings have been terminated, and in favor of the party applying. Davis v. Turner, 4 Pr. R., 190. But this section does not apply to cases where no examination of the judgment debtor has taken place; thus, where the judgment debtor procured the order to be set aside as irregular, before any examination under such order, the court said this section did not give the defendant costs, unless he has been examined.-Engle v. Bonneau, 2 Sand. S. C. R., 679; 3 Code Rep., 205.

This section does not authorize an application by a witness for an order to be paid his fees; it authorizes only an application by a party so examined, not as a witness merely, but as a judgment debtor, or as a party to the proceedings under this section, to enforce the judgment. See observations of Willard, J., in Davis v. Turner, 4 Pr. R., 190.

The remedy for his fees, of one who is a mere witness, is against the party calling him and he would not, it seems, be required to give evidence until his fees were paid. Ib.

The fees of witnesses are provided for by 2 R. S., 400, s. 42. Thus, "Fifty cents for each day while attending any court or officer; and if the witness resides more than 3 miles from the place of attendance, travelling fees at the rate of 4 cents per mile, going and returning."

All the judges of the superior court held, that if on the examination of the debtor, no property or effects applicable to the judgment should be discovered, the creditor would be ordered to pay costs to the debtor, pursuant to section 301, unless the creditor can show some good reason for having required the debtor to submit to the examination. Anon., 1 Code Rep. N. S., 113.

Under the former practice, by creditor's bill, if no property was discovered, the bill was dismissed with costs. 2 Edw. Ch. R., 196; ib., 630.

§ 302. [257.] (Amended, 1849, 1851.) Existing suits. Disobedience of order, how punished.-If any person, party, or witness, disobey an order of the judge or referee, duly served, such person, party, or witness may be punished by the judge, as for a contempt. And in all cases of commitment under this chapter, or the act to abolish imprisonment for debt, the person committed may, in case of inability to perform the act required, or to endure the imprisonment, be discharged from imprisonment, by the court or judge committing him, or the court in which the judgment was rendered, on such terms as may be just.

The amendment of 1851 is the part in italic.

Under this section a judge has power to punish as for contempt, all disobedience of orders made by him in "proceedings supplementary to the execution."

An

attachment issued by him for such contempt may therefore properly be made returnable before him at his office. Re Smethurst, 3 Code Rep., 55. 2 Sand. S. C. R., 724.

Although the code gives to the judge the power of punishing disobedience to his orders, reference must be had to the revised statutes as to the mode in which that power is to be exercised. (2 R. S., 535.) Ib.

Under this statute, a judge, upon due proof, may, in his discretion, issue an attachment in the first instance, against the party accused, to appear and answer, or he may grant an order to show cause. In either case, copies of the affidavits upon which the application is founded, should be served with the attachment or order. It is not necessary that the party accused should first have an opportu. nity of being heard upon an order to show cause before an attachment can issue. The attachment is not used in such instances, for the purposes of punishment, after a final adjudication. It is only a mode of bringing the party before the court. Ib.

It seems, that in the first district, the ordinary practice is, to give notice of motion for an attachment, or obtain an order to show cause. Ib.

Whether the affidavits upon which an attachment is issued, are sufficient to warrant its issuing, is a matter that cannot be reviewed upon habeas corpus. Ib.

On the application for the attachment, the debtor will be heard by way of appeal from the decision of the referee, ordering the delivery. Dickerson v. Vun Tine, 1 Sand. S. C. R., 724.

See note to section 297.

TITLE X.

SECTION 303.

Of the costs in civil actions.

Fee bill abolished. Allowances given, termed costs.

304. When allowed, of course, to plaintiff.

305. When allowed to defendant.

306. When allowed to either party in the discretion of the court.
307.

Amount of costs allowed.

308. Allowance, in addition, of a per centage on the recovery or claim. 309. Per centage, how computed.

310. Interest on verdict or report, when allowed.

311. Costs, how to be inserted in judgment.

317. Costs in an action by or against an executor or administrator, trustee of an express trust, or a person expressly authorized by statute

to sue.

318. Costs on review of a decision of an inferior court, in a special pro

ceeding.

321. Costs against assignee of cause of action after action brought.
322. Costs on a settlement.

§ 303. [258.] Fee bill abolished.-All statutes establishing or regulating the costs or fees of attorneys, solicitors, and counsel in civil actions, and all existing rules and provisions of law, restricting or controlling the right of a party to agree with an attorney, solicitor, or counsel, for his compensation, are repealed; and hereafter the measure of such compensation shall be left to the agreement, express or implied, of the parties. But there may be allowed to the prevailing party, upon the judgment, certain sums by way of indemnity, for his expenses in the action; which allowances are in this act termed

costs.

Agreements as to compensation to attorneys.

This section is identical with section 258 of the code of 1848. That section was held to have so far repealed the provision of the revised statutes (2 R. S., 386) prohibiting an attorney buying causes of action to sue thereon, or giving an inducement to procure a suit to be placed in his hands, as to make it lawful for a party to agree with an attorney to give him a portion of a demand, if and when recovered, in consideration of his bringing suit for the recovery of such demand. Satterlee v. Frazer, 2 Sand. S. C. R., 141.

In Barry v. Whitney, 1 Code Rep. N. S., 101, the superior court said, "Without considering whether the statutes against champerty and maintenance have been abrogated by the code, which we very much doubt, we do not think the court is deprived of the power of looking into arrangements between attorney and client," and in the case then before the court, a reference was ordered, to inquire if the amount received by the attorney was excessive, and on the referee reporting that it was, the attorney was ordered to refund a portion of the amount he had received.

Costs in existing suits.

Costs in suits, both at law and in equity, pending 1st July, 1848, except the costs of motions therein, are to be regulated by the old fee bill. Truscott v. King, 4 Pr. R., 173; Doty v. Brown, ib., 429; 3 Code Rep., 119. Where an action was commenced under the code of 1848 and decided after the code of 1849 went into effect, it was held that the costs must be regulated by the code of 1849. Holmes v. St. John, 2 Code Rep., 46.

Double costs.

It has been held that this section abolished the right to double costs given by 2 R. S., 617, ss. 24 & 25. Hallenbeck v. Miller, 4 Pr. R, 239. Van Rensselaer v. Kidd, 3 Code Rep, 224. Bagner v. Jones, 1 Code Rep. N. S., 234. Moore v. Westervelt, ib., 131. Nestle v. Jones, ib., 401; 6 Pr. R., 172; but the contrary was held in Murray v. Haskins, 4 Pr. R., 263. Chadwick v. Brother, ib., 283. Barber v. Crossett, 6 ib., 45; 1 Code Rep. N. S., 401. Calkins v. Williams, and Calkins v. Brand, 1 Code Rep. N. S., 53.

Of the opinion that double costs may be allowed, are Wells, Sill, Hand, and Mason, JJ.; contra, Parker, Willard, Duer, Ulshoeffer, Ingraham, Daly, and Woodruff, JJ.

The provisions of the revised statutes allowing double costs, allowed them only in cases of verdict, demurrer, nonsuit, non pros., or discontinuance; and a report of referees is not within the statute. 19 Wend., 225. And in Calkins v. Williams, 1 Code Rep., N. S., 53. Calkins v. Brand, ib., Mason, J., held that the public officers sued as such, are entitled, where they succeed in the action and the trial is by jury, to double costs. But that they could not have such costs where the trial had

been had before referees.

Before the code it was held, that where the defendant was entitled to double costs in the action he was also entitled to double costs on a writ of error. Burckle v. Luce, 3 Pr. R., 236. And see to the same effect, Foster v. Cleaveland, 6 Pr. R., 253; 1 Code Rep. N. S., 402.

Security for costs.

The code, it has been decided, does not repeal the provisions of the revised statutes relative to security for costs; and therefore a plaintiff who resides out of the city of New York, suing in the superior court of that city, must give security for costs, if it is required of him by the defendant. Ashbahs v. Coussin, 2 Sand. S. C. R., 632. Blossom v. Adams, 2 Code Rep., 59. This rule has been applied to a certiorari (an appeal) brought to reverse a justice's judgment. Ib. And in a case where there had been a default and judgment, and the latter stood as security, the plaintiff, after being let in to defend, moved for security for costs, and the motion was granted. Gardner v. Kelly, 1 Code Rep., 120; 2 Sand. S. C. R., 633. And where the plaintiff, who resided in the county of Cayuga at the commencement of the action, subsequently assigned the demand in suit to a resident of the city of New York, and this fact was set up in opposition to a motion for security for costs, Campbell, J., decided that security for costs must be given. Phonix v. Townshend, 1 Sand. S. C. R., 634, in note; 2 Code Rep., 2. And it was also held in the supreme court, that a non-resident plaintiff, necessarily prosecuting in the right of her intestate, must give security for costs. Murphy v. Darlington, 1 Code Rep., 85.

If the plaintiff does not permanently reside within the jurisdiction of the court (or, in case of several plaintiffs, if they are all non-residents); or is the trustee of any debtor; or is an insolvent who has been discharged from his debts, or whose person has been exonerated from imprisonment, pursuant to any law (where the suit is commenced for the collection of any debt contracted before the assignment of his estate); or has been committed in execution for a crime; or is an infant, whose next

friend has not given security for costs; in any of these cases the defendant may require the plaintiff to file security for the payment of the costs that may be incurred in defending the action. 2 R. S., 515, s. 1.

A temporary absence of the plaintiff will not entitle the defendant to security for costs. 2 Wend., 258; 4 ib., 602; 8 ib., 134. But an absence of a year is not temporary. 2 Wend., 258; and see 4 Sand. S. C. R., 198.

So if, after the commencement of the action, the plaintiff becomes a non-resident (or all the plaintiffs become non-resident), or insolvent, and be discharged or exonerated, as above mentioned, or be sentenced to the State prison for any term less than for life, the defendant may require the like security. Id., s. 2. And in all such cases the plaintiff's attorney is individually liable for the costs to an amount not exceeding one hundred dollars, until the security is filed. Id, s. 7. The statute imposes this liability on the attorney only when the plaintiff is a non-resident at the commencement of the suit. Alexander v. Carpenter, 3 Denio, 266. The circumstance that the plaintiff subsequently moves out of the State, or out of the jurisdiction of the court, does not render the attorney liable for costs, although he continues the proceedings in the cause after the plaintiff has left the State. Long v. Hall, 1 Code Rep. N. S., 115.

In Mississippi it has been held that a plaintiff who has given bond and surety on suing out an attachment, cannot be required to give further security for costs. House v. Bierne, 5 Sme. & M., 622.

A suit must be commenced in the name of an infant-sole plaintiff-to entitle the defendant to security for costs. (2 R. S., 446, s. 2.) Hulburt v. Newell, 2 Code Rep., 54.

Where a husband and infant wife brought a suit jointly, the defendant was not entitled to security for costs, although the husband was appointed and named in the proceedings as next friend of the wife. Ib.

Application for security may be made at any stage of the cause. 1 Edw. Ch. R., 450.

The defendant waives an order for security for costs, by putting the cause on the calendar. 2 Edw. Ch. R., 494.

One surety for costs is sufficient, and the plaintiff's attorney may be the surety. 4 Sand. Ch. R., 434.

If the surety becomes insolvent another must be substituted. 2 Edw. Ch. R., 208.

A substituted next friend must give security for costs. Edw. Ch. R., 311.

Colden v. Haskins, 3

As a general rule, the defendant will not be allowed to have the security increased over $250. 1 How. Spe. T. R., 146.

The defendant may except to the sureties, but the exception must be made within 20 days after he receives notice that the security is filed. (2 R. S., 516, s. 5.)

When a bond is given for security for costs in the lowest sum the statute prescribes, and the defendant does not object to it within 20 days, the court will not entertain a motion to increase the amount of security. Castellanos v. Jones, 4 Sand. S. C. R., 679.

The sureties must justify within 20 days after they are excepted to. 2 R. S., 516, s. 6.

If the plaintiff neglect to file security after an order for him to do so, his proceedings are stayed, and the defendant may move for judgment for a dismissal of the complaint. 12 Wend, 295; 19 ib., 10.

The bond for security for costs need not follow the precise words of the statute, but it will be sufficient if equally favorable to the defendant. Smith v. Norval, 2 Code Rep., 14.

The bond should be executed by the sureties alone without the plaintiff. 1 How. Spe. T. R., 100.

If the plaintiff fail in his action, and the defendant's costs are not paid according to the condition of the bond, the defendant may commence an action on the bond as a matter of course, and without applying to the court for leave. 7 Wend., 482. But before commencing an action on the bond, a demand of the costs of the plaintiff or his sureties is necessary. 5 Hill, 37; 1 How. Spe. T. R., 100; ib., 191.