A. D. 1870. Witnesses required to testify. party or wit discretion, require notice of such proceeding to be given to any party to the action, in such manner as may seem to him proper. The proceedings mentioned in this Section, and in Section three hundred and eighteen, may be taken upon the return of an execution unsatisfied, issued upon a judgment recovered in an action against joint debtors, in which some of the defendants have not been served with the summons by which said action was commenced, so far as relates to the joint property of such debtors; and all actions by creditors to obtain satisfaction of judgments out of the property of joint debtors are maintainable in the like manner and to the like effect. These provisions shall apply to all proceedings and actions now pending, and not actually terminated by any final judgment or decree. SEC. 321. Witnesses may be required to appear and testify on any proceedings under this chapter, in the same manner as upon the trial of an issue. SEC. 322. The party or witness may be required to attend before the Compelling Judge, or before a referee appointed by the Court or Judge; if before a nesses to at- referee, the examination shall be taken by the referee, and certified to the Judge. All examinations and answers before a Judge or referee, under this chapter, shall be on oath, except that when a corporation answers, the answer shall be on the oath of an officer thereof. tend. SEC. 323. The Judge may order any property of the judgment debtor, What pro- not exempt from execution, in the hands either of himself or any other Ordered to be person, or due to the judgment debtor, to be applied towards the satisfacapplied to the tion of the judgment; except that the earnings of the debtor for his per perty may be execution. appoint recei sonal services, at any time within sixty days next preceding the order, cannot be so applied when it is made to appear, by the debtor's affidavit or otherwise, that such earnings are necessary for the use of a family supported wholly or partly by his labor. SEC. 324. The Judge may also, by order, appoint a receiver of the Judge may property of the judgment debtor, in the same manner, and with the like ver, and pro- authority, as if the appointment was made by the Court, according to hibit transfer, Section two hundred and sixty-seven. But before the appointment of &c., of property. Order, &c. such receiver, the Judge shall ascertain, if practicable, by the oath of the party or otherwise, whether any other supplementary proceedings are pending against the judgment debtor, and if such proceedings are so pending, the plaintiff therein shall have notice to appear before him, and shall likewise have notice of all subsequent proceedings in relation to said receivership. No more than one receiver of the property of a judgment debtor shall be appointed. The Judge may also, by order, forbid a transfer or other disposition of the property of the judgment debtor not exempt from execution, and any interference therewith. Whenever the Judge shall grant an order for the appointment of a receiver of the property of the judgment debtor, the same shall be filed in the office of the Clerk of the Court of Common Pleas of the County where the judgment roll in the action, or transcript from Trial Justice's judgment, upon which the proceedings are taken, is filed; and the said Clerk shall record the order in a book to be kept for that purpose in his office, to be called "Book of Orders Appointing Receivers of Judgment Debtors," and shall note the time of the filing of said order therein. A certified copy of said order shall be delivered to the receiver named therein, and he shall be vested with the property and effects of the judg ment debtor from the time of the filing and recording of the order as aforesaid. The receiver of the judgment debtor shall be subject to the direction and control of the Court in which the judgment was obtained, or docketed, upon which the proceedings are founded. But before he shall be vested with any real property of such judgment debtor, a certified copy of said order shall also be filed and recorded in the office of the Register of Mesne Conveyances of the County in which any real estate of such judgment debtor sought to be affected by such order is situated, and also in the office of the Register of Mesne Conveyances of the County in which such judgment debtor resides. A. D. 1870. another party property, or on denial of debtor. SEC. 325. If it appear that a person or corporation alleged to have Proceedings property of the judgment debtor, or indebted to him, claims an interest in upon claim of the property adverse to him, or denies the debt, such interest or debt shall or be recoverable only in an action against such person or corporation by the indebtedness receiver; but the Judge may, by order, forbid a transfer or other disposi- to judgment tion of such property or interest, till a sufficient opportunity be given to the receiver to commence the action, and prosecute the same to judgment and execution; but such order may be modified or dissolved by the Judge granting the same, at any time, on such security as he shall direct. SEC. 326. The Judge may, in his discretion, order a reference to a referee agreed upon by the parties, or appointed by him, to report the evidence or the facts, and may, in his discretion, appoint such referee in the first order, or at any time. Reference by Judge. ceeding. SEC. 327. The Judge may allow to the judgment creditor, or to any Costs of proparty so examined, whether a party to the action or not, witnesses' fees and disbursements, and a fixed sum in addition, not exceeding thirty dollars, as costs. of order, how SEC. 328. If any person, party or witness, disobey an order of the Disobedience Judge or referee, duly served, such person, party or witness, may be punished. punished by the Judge as for a contempt. And in all cases of commitment under this chapter, the person committed may, in case of inability to perform the act required, or to endure the imprisonment, be discharged from imprisonment by the Court or Judge committing him, or the Court in which the judgment was rendered, on such terms as may be just. TITLE X. OF THE COSTS IN CIVIL ACTIONS. SEC. 329. Existing statutes regulating costs repealed. 333. Amount of costs allowed. 334. Allowance in addition to costs. 335. Allowance, how computed. Difficult and extraordinary cases. 336. Interest on verdict or report, when allowed. A. D. 1870. Fee-bill abolished. SEC. 337. Costs, how to be inserted in judgment. Adjustment of interlocutory costs. 338. Clerk's fees. 339. Referee's fees. 340. Costs on postponement of trial. 341. Costs on a motion. 342. Costs against an infant plaintiff. 343. Costs in an action by or against an executor or administrator, trustee of an express trust, or a person expressly authorized by statute to sue. 344. Costs on review of a decision of an inferior Court in a special proceeding. 345. Costs in an action by the State. 346. The like. 347. Costs against assignee after action brought, of cause of action. 348. Costs on a settlement. SEC. 329. All statutes establishing or regulating the costs or fees of attorneys, solicitors and counsel in civil actions are repealed; and hereafter the measure of such compensation shall be left to the agreement, express or implied, of the parties. But there may be allowed to the prevailing party, upon the judgment, certain sums, by way of indemnity, for his expenses in the action, which allowances are in this Act termed costs. SEC. 330. Costs shall be allowed of course to the plaintiff, upon a recovto of course ery, in the following cases: When allow tiff Several ed the plain- 1. In an action for the recovery of real property, or when a claim of title actions on one to real property arises on the pleadings, or is certified by the Court to have instrument. come in question at the trial. 2. In an action to recover the possession of personal property. 3. In the actions of which a Court of Trial Justice has no jurisdiction. 4. In an action for the recovery of money, where the plaintiff shall recover fifty dollars. But in an action for assault, battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation, or seduction, if the plaintiff recover less than fifty dollars damages, he shall recover no more costs than damages. And in an action to recover the possession of personal property, if the plaintiff recover less than fifty dollars damages, he shall recover no more costs than damages, unless he recovers also property, the value of which, with the damages, amounts to fifty dollars, or the possession of property be adjudged to him, the value of which, with the damages, amounts to fifty dollars. Such value must be determined by the jury, court or referee by whom the action is tried. When several actions shall be brought on one bond, recognizance, promissory note, bill of exchange or other instrument in writing, or in any other case for the same cause of action, against several parties who might have been joined as defendants in the same action, no costs other than disbursements shall be allowed to the plaintiff in more than one of such actions, which shall be at his election: Provided, That the party or parties proceeded against in such other action or actions shall, at the time of the commencement of the previous action or actions, have been within this State and not secreted. SEC. 331. Costs shall be allowed of course to the defendant in the actions mentioned in the last Section, unless the plaintiff be entitled to costs therein. SEC. 332. In other actions, costs may be allowed, or not, in the discretion of the Court. discretion of In all actions where there are several defendants not united in interest, party, in the and making separate defences by separate answers, and the plaintiff fails the Court. to recover judgment against all, the Court may award costs to such of the defendants as have judgment in their favor, or any of them. In the following cases, the costs of an appeal shall be in the discretion of the Court: 1. When a new trial shall be ordered; 2. When a judgment shall be affirmed in part and reversed in part. SEC. 333. When allowed, except in Courts of Trial Justices, costs shall be as follows: 1. To the plaintiff, for all proceedings before notice of trial, in actions where judgment for failure to answer can be taken without application to the Court, fifteen dollars; where judgment can only be taken on such application, twenty-five dollars; for all proceedings after notice of and before trial, fifteen dollars; for each additional defendant served with process, not exceeding ten, two dollars; and for each necessary defendant, in excess of that number, served with process, one dollar. 2. To the defendant, for all proceedings before notice of trial, ten dollars; and for all proceedings after notice of and before trial, fifteen dollars. 3. To either party for the trial of an issue of law, twenty dollars; for every trial of an issue of fact, thirty dollars; and where the trial shall necessarily occupy more than two days, ten dollars in addition hereto. 4. To either party, where a new trial shall be had, for all proceedings after the granting of and before such new trial, twenty-five dollars; for attending upon and taking the deposition of a witness conditionally, or attending to perpetuate his testimony, ten dollars; for drawing interrogatories to annex to a commission for the taking of testimony, ten dollars; for attending the examination of a party before trial, ten dollars; for making and serving a case, or case containing exceptions, twenty dollars, except that where the case shall necessarily contain more than fifty folios, there shall be allowed ten dollars in addition thereto; and for making and serving amendments thereto, ten dollars. To the plaintiff, for the appointment of a guardian of an infant defendant, ten dollars; but no more than ten dollars shall be allowed for the appointment of guardians in any one action. To the plaintiff, for procuring an order of injunction, ten dollars. 5. To either party on appeal to the Supreme Court before argument, thirty dollars; for argument, sixty dollars; and when a judgment is affirmed, the Court may, in its discretion, also award damages for the delay, not exceeding ten per cent. on the amount of the judgment; for preparing and serving a case, or case containing exceptions, in appeals to the Supreme Court, twenty dollars. 6. To either party, for every term, not exceeding five, at which the cause is necessarily on the calendar and is not tried, or is postponed by order of the Court, ten dollars; and for every term not exceeding ten, excluding the term at which the cause is argued in the Supreme Court, ten dollars; but in an action hereafter brought to recover dower, before Amount of costs allowed. A. D. 1870. allowance. admeasurements of real property aliened by the husband, the plaintiff shall not recover costs, unless it appear that the dower was demanded before the commencement of the action and was refused. The same costs shall be allowed to the plaintiff in proceedings under chapter two, title twelve, of the second part of this Code, (Sections three hundred and ninety-two to three hundred and ninety-eight,) as upon the ' commencement of an action. SEC. 334. In addition to these allowances, there shall be allowed to Additional the plaintiff, upon the recovery of judgment by him, in any action for the partition of real property, or for the foreclosure of a mortgage, or in any action in which a warrant of attachment has been issued, or for an adjudication upon a will or other instrument in writing, and in proceedings to compel the determination of claims to real property, the sum of ten per cent. on the recovery, as in the next Section prescribed, for any amount not exceeding two hundred dollars; an additional sum of five per cent. for any additional amount not exceeding four hundred dollars; and an additional sum of two per cent. for any additional amount not exceeding one thousand dollars. how compu And in the actions above named, if the same shall be settled before judgment therein, like allowances upon the amount paid or secured upon such settlement, at one-half the rates above specified. SEC. 335. These rates shall be estimated upon the value of the propAllowance, erty claimed or attached or affected by the adjudication upon the will or ted. Difficult other instrument, or sought to be partitioned, or the amount found due extraor- or unpaid upon the mortgage in an action for foreclosure. And whendinary cases. ever it shall be necessary to apply to the Court for an order enforcing and the payment of an installment falling due, after judgment, in an action for foreclosure, the plaintiff shall be entitled to the rate of allowance in the last Section prescribed, but to no more in the aggregate than if the whole amount of the mortgage had been due when judgment was entered. Such amount of value must be determined by the Court or by the Commissioners, in case of actual partitions. In difficult and extraordinary cases, where a defence has been interposed, or in such cases where a trial has been had, and in actions or proceedings for the partition of real estate, the Court may also, in its discretion, make a further allowance to any party, not exceeding five per cent. upon the amount of the recovery or claim, or subject-matter involved. SEC. 336. When the judgment is for the recovery of money, interest, Interest or from the time of the verdict or report until judgment be finally enport when al- tered, shall be computed by the Clerk, and added to the costs of the party entitled thereto. verdict or re lowed. be inserted in of interlocutory costs. SEC. 337. The Clerk shall insert in the entry of judgment, on the Costs, how to application of the prevailing party, upon five days' notice to the other, judgment. except when the attorneys reside in the same city, village, or town, and Adjustment then upon two days' notice, the sum of the allowances for costs, as provided by this Code, the necessary disbursements, including the fees of officers allowed by law, the fees of witnesses, the reasonable compensation of commissioners in taking depositions, the fees of referees, and the expense of printing the papers for any hearing, when required by a rule of the Court. The disbursements shall be stated in detail and verified by affidavit. A copy of the items of the costs and disbursements shall be served, with a notice of adjustment. |