Drew v. Comstock , 17 How. Pr. 469 ( 1859 )

Davis, Justice.

It is assumed by the facts presented that the case was regularly discontinued on Saturday before the circuit, and that costs were paid or tendered. The sole question i., as to the amount plaintiff was bound to pay on Saturday at the time of discontinuing. The circuit had not then commenced, and I am of opinion that the right to the circuit fee of $10 had, therefore, not attached.

The cause was not necessarily on the calendar, for, had the facts appeared to the clerk, it would have been stricken off before the circuit commenced ; and neither of the other conditions of the right to the fee mentioned in the seventh subdivision of section 307 of the Code could happen in respect to it.

The equities are with the defendant, but the legislature has not made the provisions of the Code broad, enough to cover this case. There must be a retaxation and the $10 circuit fee must be disallowed, but without costs of motion.