sons. A person suing in forma pauperis, (a mode of proceeding Poor perof which we shall have occasion to speak hereafter,) is not liable for costs by the provisions of the statute.96 sue. On a feigned issue awarded by a court of law, it seems that Feigned isthe costs follow the verdict, and must be paid to the party obtaining it :97 these costs, however, are only the costs of the feigned issue, and not any costs previous to the time when it was first ordered.98 SECTION II. OF THE TAXATION OF COSTS. In order to recover his costs, the prevailing party must make Bill of costs. out a bill, stating the various services, with the charges allowed by law, the fees paid to the different officers of the court, and the other expenses which he is entitled to recover from the opposite party. A copy of the bill must be served, and notice of taxation before some proper officer given, as in case of other notices.99 The notice must specify the day, hour and place, and the Notice. officer before whom it is intended that the bill shall be taxed. If the costs are not taxed on the day for which notice is given, and the opposite party does not appear, they may be taxed on a subsequent day, without further notice.100 If they are taxed without notice, the party will be compelled to retax, at his own expense; and the costs of the re-taxation and of the 96 R. St. P. 3. Ch. 7. T. 1. s. 4. Vol. 2. p. 445. 98 Burr. Rep. 603. 97 7 Taunt. 31. 100 1 Johns. Cas. 32. Folio. Services must be actually rendered. Same person attorney and motion, together with such sum as may be deducted, will be subtracted from the execution: but the omission to give notice in no respect affects the regularity of the judgment; nor is the notice of taxation such a proceeding as the court will set aside.' Where a party submits a bill of costs to a taxing officer for taxation, he cannot afterwards withdraw the bill, and have it taxed by another; and in every such case the taxation will be set aside, with costs of the motion, without reference to the propriety of the items taxed.2 For the fees allowed by law, to counsel, attornies, clerks, sheriffs and other officers of the court, reference must be had to the third title of the chapter" of costs and the fees of officers," in the third part of the revised statutes, in which they are particularly specified. It is only proposed here to notice some general provisions, and rules to be observed by the taxing officer. For drafting papers and for copies, attornies are usually allowed a certain sum for each folio. The folio was formerly computed at seventy-two words: but in the revised act it is provided, that the folio shall be construed to mean one hundred words,101 and the allowance is proportionally increased. No fee or compensation can be demanded or received for any service, unless such service was actually rendered ;* except that prospective costs may be taxed for filing and docketing a judgment roll or decree, and for an execution thereon.5 Where the same person acts as attorney and counsel in the counsel. same cause, he is not entitled to fees in both capacities in relation to the same motion, hearing, trial, pleading, or other matter; but he may elect in which capacity he will receive compensation for such service. But for particular services ren 12 Wendell. Rep. 244. 7 Cow- 101 R. St. P. 3. Ch. 10. T. 4. s. 4. Vol. 2. p. 650. 4 Ib. s. 6. 5 Ib. s. 10. p. 651. dered by an attorney, in reference to any matter for which no counsel fee is allowed, he is entitled to the fees allowed for such services.6 Counsel fee, &c. No fee can be taxed for any counsel, unless such counsel was actually employed; nor for any services having been rendered by any counsel, attorney, clerk, sheriff, or other officer, in the progress of a cause, unless such service was actually rendered; except when expressly provided otherwise by statute. No allowance is made for drawing, copying, or filing Warrant, any warrant in a suit actually brought; or any plaint; or any precipe for any writ, rule, order, or other proceeding; or any venire, unless in cases where it has actually been awarded to summon a foreign jury; or any recognizance of bail, except in suits against the bail; or for any issue roll.9 plaint, &c. copied, not Whenever an allowance is made for drafting any process, One draft. pleading, or other proceeding, it can only be made for one draft of the same process, pleading, or proceeding, notwithstanding several may have been issued or used. 10 No record, Record, &c. writ, return, pleading instrument, or other writing, copied in part of draft. any pleading, proceeding, entry, process, or suggestion, is computed as any part of the draft of such pleading or other proceeding.11 fee. No retaining fee is allowed to the plaintiff's attorney, in Retaining any suit upon a bond taken on the arrest of a defendant, nor to the defendant's attorney, upon confessing judgment, when no suit shall have been actually brought.12 Only one circuit roll is allowed in the same cause.18. Where any fee is allowed to any counsellor or attorney, Circuit roll. such fee can be taxed only for one counsel or attorney, unless special provision is made for two or more.14 No counsel or attorney in any cause is allowed any fee for attending as a witness in such cause.15 The legal fees paid for certified copies of the depositions of witnesses, filed in any clerk's office, and of any documents or papers recorded or filed in any public office, necessarily used on the trial of a cause, or on the assessment of damages, should be allowed in the taxation of costs.16 And the taxing officer is authorised to allow an attorney in the supreme court, such actual disbursements necessarily incurred in cases not specified in the act, and which shall be proved by affidavit, as he may deem reasonable.17 If any officer or other person to whom fees are allowed by law for any service, shall receive any greater fee than is allowed by law; or demand or receive any fee for any service, unless such service was actually rendered by him, (except in the case of charges for prospective costs before noticed,) it is provided, that he shall be deemed guilty of a misdemeanor, and be liable to the party aggrieved for treble the damages sustained by him.18 But these provisions are not to be so construed as to prevent any officer from demanding a fee allowed for any service of which he is by law entitled to require the payment previous to rendering such service.19 It is provided, that "every officer authorised to tax costs in any court of law or equity, or for services rendered in any proceeding authorised by law, shall examine the bills presented to him for taxation, whether such taxation be opposed or not, and shall be satisfied that the items charged in such bill are correct and legal; he shall strike out all charges for services which, in his judgment, were not necessary to be performed, and for all folios in pleading, entries, or proceedings, which were unnecessarily inserted; and he shall strike out the charges for more than two counts for the same cause of action, in any declaration, and the charges for more than two pleas of the same matter of defence, in any plea."20 penalty. When a bill of costs is presented for taxation upon a judg- Bond with ment rendered upon any bond or instrument having a penalty, an affidavit of the plaintiff or his attorney must be produced, specifying the amount due by the condition thereof.21 of witness. It is likewise provided, that "when there shall be charges in a Attendance bill for the attendance of any witness, or for copies or exemplifications of documents or papers, or for any other disbursements, except to officers for services rendered, such charges for witnesses shall not be taxed without an affidavit, stating the distance they respectively travelled, and the days they actually attended; and such charges for copies shall not be taxed without an affidavit that such copies were actually and necessarily used, or were necessarily obtained for use; nor shall such disbursements be allowed without an affidavit specifying 20 Ib. T. 5. s. 5. Vol. 2. p. 653. 21 Ib. T. 5. s. 6. Vol. 2. p. 653. In the first title of this chapter the revisers introduced in their original report a provision that in an action upon an instrument containing a penalty, the sum due thereon, if the condition were for the payment of money, should be considered the amount of the recovery, for the purpose of determining whether or what costs were recoverable; or the amount of damages assessed by the jury, if the condition were for the performance of any other covenant or undertaking. See Revisers' Reports, Ch. 10. of P. 3. p. 8. 9. s. 22. 23. The sections establishing this rule, were not adopted by the legislature, though they re tained the section above cited, |