Brainard v. Phillips

The general practice has been to tax this item in the defendant’s bill. As to this,

Motion denied.

*21A motion had been made by the defendant to set aside the certiorari for irregularity, but denied without costs, which were also taxed as the defendant’s general costs in the cause; and it was insisted that these were properly taxable, like the costs of a motion' to change the venue, for a commission, reference, dec. But,

Where amo. tion to set aside a certiorari is denied without costs, these are not taxable as a part of the defendant’s general costs, upon affirmance.

They do not stand upon the same ground. The cases mentioned are necessary steps in the ordinary course of the cause. Here was a motion improperly made. It was, to be sure, denied without costs; probably under some peculiar circumstances in the case, by which our discretion as to costs was guided. These, however, were finally disposed of upon the motion. As to this,

Re-taxation ordered.

M. Brainard, for the motion.

J. A. Spencer, contra.