The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-09-27
Superior Court-Special Term.
IMPORTANT TO LAwYERS-DECIsiON On POINT OF
ppA cTrr

IMPORTANT TO LAwYERS-DECIsiON On POINT OF
PRACTICE UNDER THE CODE
SEPT. 25.-Henry H. Mordnge .4rchibad Henry "A
former motion in this decided in favor Of plain
t with $40 costs against the defendant which he tailed
to pay within the cited time and the plaintiff without
Supplying to the Court issued execution aud the sheriff
levied the defendants property Then the defendant
rendered the $40 but refused pay the sheriff fees
the ground that IL was irregular to issue execution
without first demanding payment The plaintiff in his
that the defendant in Court when the
order made and subsequently, served with COPY
it not, therefore necessary to make demand him
before the issuing OF the execution The defendant makes
motion now to sc aside the execution upon which mo.
ton Judge Campbell delivered the following decision:
This motion must be denied. The Act OF November
22d DE- ciares that person shall be imprisoned for
Of intcrocuory costs for contempt OF court
in not paying costs except certain persons enumerated
The third section Of the act however cayes that pro
cess in the nature Of d cias against personal proper
y be issued for the collection Of such costs founded
such order OF Court In tho OF Eckerron Spoor
and others Howard T r. SOL, to which referred
by the defendants counsel the fixed and
interocuory. and they had been taxed adjusted
Here they and they fixed by the
der Of the Court The lime for was then fixed By
the defendant was present in court when the
order was made and copy Of it was afterwards served
his attorney canuot how 1t necessary Tor the
plaintiff afterwards to seek the defendant and make
formal demand for the Of these costs The law
which was always tender Of the formal liberty Of the
sz,n required that such demand be made before he
could be attached and imprisoned but instead Of such
attachment the party to whom inter0cutory costs
now awarded, collects them he would collect judg
ment except that remedy given against the real
estate. AS read the statute, he must issue process
citing the order proceedings which awards him these
srbrsry costs either literally in substance and
msndiDg the sheriff to levy and attach the amount out
Of the party againtt whom the costs awarded The
process in the nature Of ia NOTE for in the nature
attachment In like the present where the order
Of the court fixes the amount Of the costs and limits the
time for ana the orde. has been duly served
the attorney and is not Appealed from this process and
that may Issue ~ matter OF course. and without any
further direction Of the court observe looking at
the process in this copy of which ia among the
papers handed me 1t directs the sheriff to make the
amount out of the real estate Of the defendant failure
to make IL from the personal estate This took away
Che IIoc should issue only against the pcrsona estate
But this objection not made by the defendant in the
argument The process may be amended in this respect
Ge' med pecesay In other respects it to be right
IL reoites the substance OF the order. The motion to
set IL ABIDE is denied but without costs.