2 Cow. 400 | Court for the Trial of Impeachments and Correction of Errors | 1823
Had the cause been heard, it would be proper to speak of the merits; but as the appellant did not choose to bring it forward, we can only look to the circumstances attending the appeal and dismissal, as they have come under our observation. The appellant had a right to withhold an examination of the merits; and take the effect of a simple dismissal under the 15th rule of this Court, but
There is no propriety in examining the merits ; but I think the motion should be granted. The taxable costs are a very inadequate compensation for the attendance of counsel here from day to day, at great expense.
I know of no statute authorizing this amercement. The party had a right to bring his appeal. He declines a guing it. This he had a right to do, and to incur the consequences of a simple dismissal. What are these consequences 7 The 15th rule of this Court says, the dismissal shall be with costs, which means no more than taxable costs. Suppose a nonsuit in a Court of law. The statute says the defendant shall recover his costs : was it ever heard of, that the party should be mulcted in a round sum, beyond what the taxing officer would allow 7 I am against the motion.
I am of opinion that this Court is expressly prohibited from going beyond the taxable bill. The statute
Stranahan, Senator, thought the statute had no applicar tion to this question.
Redfield, Senator, concurred with Mr. Justice Wood-worth.
Earll, Senator, concurred with the Chief Justice.
Porter, Senator, concurred with Mr. Justice Wood-worth.
A majority of the Court, being for the motion,
Rule accordingly.
2 R. L. 3
I did not examine the ayes and noes upon this motion, but my recollection is, that the court stood about 14 to 11.