
    SOLOMON ANDREWS v. CHARLES FORD ET AL.
    Re-taxation of costs.
    An injunction was allowed in this case on the filing of the bill, lia January, 1845, a demurrer to the bill was filed by the defendants, which was overruled, with costs, in April, 1845.
    In February, 1845, on affidavit that Benjamin Maurice and Charles F. Maurice, two of the defendants, resided in the county of Ulster, in the State of New York, and on motion of counsel for the defendants, a dedimus potestatem, to take their answers was ordered. In July, 1845, the answer of the said defendants was put in in the usual way, having been sworn to before a master in this state. In March, 1846, the injunction was dissolved, with costs. The replication was filed in December, 1846. The defendant’s solicitor set thecause down for hearing at the June Term, 1847. On the 3d of July, 1847, an order was made, on motion of the solicitor and counsel for the defendants, “ by and with the consent of the solicitor of the complainant,” that the complainant’s bill be dismissed, with costs, to be paid by the complainant.
    In taxing the defendants’ costs the clerk taxed costs for their demurrer, and for their motion for the commission or dedimus potestatem, and for drawing and sealing the commission, and for notice of hearing, rule for hearing and setting down cause, and for enrolling proceedings, and for four term fees.
    A motion was made before the Chancellor to re-tax the costs.
    
      J. S. Green, for the motion.
    P. D. Vroom, contra.
   The Chancellor.

The costs taxed for the demurrer must be struck out. The several items taxed for the costs of the dedimus potestatem to take the answer of the non-resident defendants must be struck out, in analogy to the costs of commission to examine witnesses abroad or in another state.

It is for the complainant’s solicitor to set the cause down for hearing; on his failing to do so, his bill may be dismissed, with costs. The costs taxed for noticing the cause and for the rule for hearing and setting down the cause must, therefore, be struck out.

The 51st section of the Chancery practice act provides, that when any suit shall be dismissed in, pursuance of any consent or agreement of the parties for that purpose, no enrollment of the proceedings shall be necessary, nor shall any fees be allowed or taxed therefor; but either party may, at his own expense, require the same to be enrolled. The order dismissing the bill, in this case, states that it was made by and with the consent of the solicitor for the complainant. The fees for enrolling, therefore, cannot be taxed against the complainant. Four term fees are taxed, including the term fee taxed on the dissolution of the injunction. The act to regulate fees provides that no more than three term fees shall be allowed in any cause. The four term fees taxed are all term fees in this cause. One of them must be struck out. The complainant’s costs on overruling the demurrer must be taxed against the defendants, and be deducted from the amount of the costs taxed against the complainant.  