The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-01-17
LEGAL INTELLIGENCE.
Supreme court-Gen.r., r.-m


stedrH Receiver, and others Curtis and oers-The
following opinion was rendered by Judge Mitchell, the
rourt copcurring:-
The decree or judgment OF this Court rendered on
The 3lst Of December last tustang the trusts in the
cause and adverse to the claims of the receiver 1t d
dected in substance that the taxable coss' Of the
trustees and Of the receiver and Of other parties toge
rher with the amounts secured by the trust Deeds be
aid out OF the funds in the hands Of Mr.. Palmer spe
kal receiver in these actions and II these not su
ent next OF the funds In the hands of Mr. Leavitt
10 far those funds covered by the trust deed
nd necessary for that purpose The bills were fled
N 1872 and answers put in and testimony taken and
osed in December 1850 The pleadngs and proofs
III in writing and constituted several large volumes Of
printed The called for hearing in pril
ISL, before Mr. Justice King at special term, tut
Areced by him, pursuant to the Judiciary act to be
hrst heard at general term and y was so heard the
eeadings and proofs 1852. The trustees applied to
ne Of the Justices OF this Court to tax their costs when
'he counsel for the objected tina. the
shoulc be under the and tue Justice referred
natter to the general term for directions Til. receiver
bow also objects the taxation the ground that he
s appealed from the decree and given security in $780,
Which he insists is stay Of all proceedings, and
tally to prevent any pay ment of moneys under the de-
rec. The trustees contend that the appeal stay,
ness there be security for the payment of whatever
Ium the appellant may be decreed to pay. The
pnly questions now necessary to be decided are,
whether appeal With security in $3.50 stays the taxa
ion of costs and by what the taxed
assuming the view of 459 OF the Code that the
Judgment in these actions is to be entered according
heCode although the action before the
ode, then according to 31 the clerk is to insert
IN the entry of the judgment the amount of costs
SyaSs 70 any party; and the Judgment would not be
kmount Of the costs to the prevailing party formed a
proper part of complete judgment In equity ALSO the
hsnge to the whole bill of costs tn tue Decree
instead Of stating the total ia the decree The Code soc
III, adopts the common law practice All, then that
he trustees propose to is to perfect their udg
nent not TO execute It, Sec. 1886 prevents appeal
tss execution Of tie Ply Judgment unless security 5e
1iven in tie amount therein required; and sec. 342
Rows such an undertaking given In this to
Nstay proceedings in the court below upon the judgment
appealed from" Proceedings upon the judgment
hose which In way to carry out enforce the
Judgment, as an execution or judgment for the pay
bent Of money, Q decree OF foreclosure and
e process for contempt other cosrcve measures
L. judgment to deliver documents property or 10
xecute conveyance These modes of proceeding upon
Judgment are specified in secs 335-6-I-s, and Illus
the meaning Of the general phrase afterwards used
339 and 342 and show that it to be construed
reference to those illustrations, and in analogy with
em The taxation or adjustment OF cost not being
feans OF completing it, is not stayed by the appeal.
e other question Is as TO the rule of taxing costs To
Aearly, It may be proper to notice the legislation
hch they founded. The Revised Statutes prescrio
the law costs both at law and in chancery and
nnued to control to the amount of costs in suits at
w until l84O when new system of costs in such suits
ss adopted The general principle Of the new system
as to pay for particular service certain sum. wheth-
Is II took much or little writing to ,rorm it. The
t not merely inconsistent with the old in to
j., TO- 20 81 81 and so Of the Revised statutes
costs These sections related to costs of attorneys and
counsel the Supreme Court Common Pleas and of
the clerks and cri-rs in those courts claws lS4o ch 1885,
40 and r. s. 632, II, &C. 1t however provided by
that the act should not affect any suit proceed
ing commenced before that took effect This saving
section was repealed In 1874 claws 1884, CHI. l0i 81
90 that after that time the law of ls40 to apply
to suits iced before 1870. AT common law, aud
without some statute, ssfu party had right
to costs IT, therefore, in any case successful party
and not repealed which gives them to him He cannot
claim them under repealed statute for that has
ceased to exist and he left therefore, TO claim them
rsder some statute in force when the judgment
rendered Accordingly, under the joint effect of the
acts Of costs could not be taxed under the sys
tenn of the Revised Statutes II the judgment obtained
beore the act OF 1874 took effect except perhaps be-
tseen attorney and client lsand Sup and Rep, 66s
vsed Statutes were adopted they the previous rev
statutes TO costs the subject Sub 90 Of 81
Dr. S. 1872 but declared that such report should no
effect suits commenced in any evil previous to the
repeal taking eec-ld p 1555 That leIt two systems
iniorce, and IT is believed thai each applied asto
them Before the Revised Statutes costs appeal in
certain from Justices Court to the County Court
tutes gave the appellant full II he rendered the
judgment against him $lU and the Supreme Court held
although the appeal was made before the Revised sta
tutes took effect that the former statutes repealed
and that there then law regulating the costs in
cases of that kind but what TO be found in the Re-
vsed Statutes, which, therefore, must govern Pelpe
rel Berry Herkimer County Pleas W., 2l0) This
put the decision the ground that other law as to
costs but the then in force like decision
on the same principle was In the Supervisors of
Onondaga Briggs, g DEMO, l73D under the acts OF
menced before the act of 1840 IL judgment obtained
after the act of ls44 took effect all the costs were To be
taxed under the act Of lsbut the ground that the
previous to costs have been repealed and be-
totally extinct, the Court sad:-"When the 3Sth
section Of the OF 1870 be repealed the act
of 1884, all the provisions OF the Revised Statutes
regulating the compensation Of councillors and at
torneys in this court became extinct and that
ras no oSs act in force when the suit wa. srmnate
when the costs taxed bearing upon the subject
I'd. PIP. IFS 176) This case is different. These were
equity suits, commenced before the Code took ede: IT.
and the Revised Statutes TO the costs in such suits
remain TO this day epealed Notwithstanding all the
amendments Of the laws they touched by the
acts ls4o and 1874 and there has been any
expressly repeating them. They, therefore, may stand
along with the Code and have generally been supposed
still to stand and to have equal force where the
vices were rendered under them. Section 459 Of the
Code, ~ amended in 1851 does not by implication repeal
future proceedings In actions Heretofore commenced
follows when issue OF law or fact TO be tried
after judgment the proceeding enforce reach
dy or reverse, including the costs OF appeal" BY
its very term, was to apply only to the future proceed
served in these and the and replies aso
drawn and served and the testimony then taken and
past (and not Of the future proceedings in the cause
when the act Of 1851 passed. These services too
all rendered under reasonable expectation that
they be paid for under the laws then In force
These laws do remain still In force and have applcI
ton IL be 70 when actions
Gas this wa before the Code took effect and the costs had
not yet been taxed judgment rendered They be
said TO have been allowed to remain for cases where
Judgment had been rendered. but costs not yet taxed
for after judgment the rights Of the parties would bs
fixed a contract and the subsequent repeal Of the
Law could not affect such rights. II Is also entirely
trary the prevailing policy Of the Legislature TO allow
law to retrospect, where II does not impair
tract Accordingly the Code by express terms, not
apply to these existing suits except the FIRST part
Of IT, which relates only TO the powers Of the courts
<ss) The statute OF limitation adopted in II made
70 apply only to future actions and OF action
although such statutes Affect the remedy only The
title Of the Code relating costs included In the
part which not TO apply 10 existing actions and
while oher sections were, by the supplementary act Of
ls49 made applicable TO old suits this title to costs