Hinman v. Bergen , 5 How. Pr. 245 ( 1851 )

Morse, Justice.

It is urged on the part of the plaintiff that section 307, sub. 8, which provides for the allowance of ten dollars “ for every circuit at which the cause is necessarily on the calendar and is not reached or is postponed,” makes no exception on the ground that the postponement took place at the request and for the benefit of the party who seeks for the allowance. It seems to be supposed that this subdivision of section 307 is the only part of the statute which bears on the question as to these allowances. This is a mistake. The whole statute upon costs is to be taken together, and moreover is to receive a reasonable construction, which, that contended for by the plaintiff, is not.

The statute of costs in civil actions, after repealing all former fee bills, and existing rules controlling the right of a party to agree with his attorney or counsel, as to the measure of their compensation, provides for the allowance to the prevailing party “ certain sums by way of indemnity for his expenses in the action,” which are “ termed costs” (See § 303 of the Code). By section 307 these sums termed costs, are set forth, and the particular head of expense which each is to indemnify against, is specified. Thus the general language in section 303 is rendered specific. The sum specified for a particular stage of the action, or proceeding in the cause is by way of indemnity for the expense of that particular stage or proceeding. The proper reading of the latter clause of section 303 and sub. 8 of section 307 is together; the former specifying the end proposed and the latter the means of attaining that end. The plain rule laid down by the statute is that “ ten dollars” shall “ be allowed to the prevailing party by way of indemnity for his expenses for every circuit at which the cause is necessarily on the calendar, and not reached or is postponed.”

These sums are to be allowed by way of indemnity for his expenses of the circuit, if allowed at all. To indemnify is to save harmless from loss or penalty. The plaintiff has suffered neither loss or penalty at the circuits from which he procured the trial to be postponed; so far from the postponement being to his loss it was to his benefit, and for his accommodation. If the defendant had insisted upon it he would have been entitled to receive these amounts; but he waived that. It would be inequitable; a discouragement to liberal and manly dealing among counsel; and contrary to the plain intention of the legislature to allow these items. Thirty dollars must be deducted from the bill of costs taxed by the cleric. - _