| Superior Court of New Hampshire | Dec 15, 1852
When a writ of error is brought to reverse a judgment for an alleged mistake in a judgment for costs, the fact whether there is an error must be ascertained in the same manner as mistakes in bills of costs are ascertained when presented for allowance before judgment. And in allowing bills of costs, the court take notice of the distance and situation of the residence of parties, of the number of days the court sits each term, of the appearance or nonappearance of the defendant, and inquire into every matter upon which a correct taxation of costs must depend. Ford v. Wright, 7 N.H. 586" court="None" date_filed="1835-07-15" href="https://app.midpage.ai/document/ford-v-wright-8504049?utm_source=webapp" opinion_id="8504049">7 N. H. Rep. 586.
The court, in fact, revise the whole taxation, deducting from the items that are too large or incorrectly embraced in the bill, and adding wherever they may be found to be deficient; and if, upon the whole, it shall appear that the sum for which judgment has been rendered is not greater than what the defendant in error would have been entitled to upon a correct taxation in the common pleas, judgment will -not be reversed.
The first is- in the costs returned by the auditor. The objection is that two cents too much were taxed for the witness Morrison. This taxation was prior to the act of 1850, increasing the fees of witnesses, and the witness was, therefore, entitled to forty cents a day for attendance, and eight cents a mile for travel. He attended but one day, and had he travelled but one mile the objection would be good; for he was taxed at fifty cents, and the legal fees would be but forty-eight cents. But it appears that he travelled more than one mile and less than two; and the rule is, that fractions of miles shall be taxed as whole miles. There is no provision of law for parts of miles any more than parts of days. This taxation, then, was in reality six cents too small.'
The error of twenty-five cents in the attendance at the July term, 1849, is conceded, and we, therefore, pass it.
The assignment of error in taxing one dollar for attorney-fee in the superior court is well founded. An attorney-fee can be taxed only in the court where the bill of costs is finally taxed and the judgment made up, which, in this ease, was in the common pleas.
The taxation for the copies, on the transfer of the action, was correctly made. When a question of law is transferred to the superior court, the party who moves for a new trial,. on account of any alleged error in the ruling of the court, is required, in the first instance, to advance the expense of the copies, and of the entries and continuances in the superior court, which sums are to be taxed in his bill of costs, if he shall recover. When a question is transferred by an agreement of parties, such expenses^ are required to be advanced by the plaintiff. Rules of Court, 51.
This transfer was by agreement of parties. It was, therefore, the duty of the plaintiff in the court below to defray
Since the adoption of the rules of court, in August, 1849, it has not been the practice to limit the amount taxed for attendance in bills of costs to the extent required by the rule of 1840. The Revised Statutes provide that the party shall be allowed twenty-five cents for each day’s attendance, and it was the intention of the court that the rule of 1849 should supersede that of 1840. Still, the court may regulate the taxation of bills of costs, as they are authorized to do by statute; and the practice is, where the session is much extended beyond the usual length of an ordinary term, by holding an adjourned term or otherwise, to limit the taxation for attendance to twelve days, except at the term when the action is tried. If, at the time this bill was taxed in the common pleas, the attention of the court had been called to this item of $7,50, and the question of its allowance had been submitted to them, probably the excess over three dollars would have been stricken out. But being a question for the discretion of that court, it is not a taxation for which error will lie.
It appears by the transcript from the common pleas, that a 'subpoena was not only issued but served. Instead of a deduction in this item, there should be an addition of seventeen cents for the service.
The result of the matter, then, is this: There was an error of twenty-five cents in taxing the attendance at July term, 1849, and also $1 for an attorney-fee in the superior court, being $1,25. On the other hand, the taxation by the auditor was six cents too small, and nothing was taxed for the service of the subpoena. The six cents and the seventeen, making twenty-three, being deducted from $1,25, leaves for error $1,02. Deducting this from $44,27, the amount for which judgment was rendered, there remains $43,25. The judgment for costs must, therefore, be reversed, and a judgment for costs entered for $43,25.