
    Merritt and others vs. Gosman and another.
    Upon a judgment by default in debt on a money bond, the costs are not limited to a fixed sum under the act of 1844, but may.be taxed by items.
    
    Where the defendant demurs and the plaintiff amends the declaration and then has judgment by default, charges for counsel fee, brief and amended declaration are not taxable, and the bill of costs is fifty, and the copy twenty-five cents.
    Costs. The action was on a money bond. The defendants demurred to the declaration, and the plaintiffs thereupon amended under the rule allowing amendments as of course. The defendants did not plead to the amended declaration, arid the plaintiffs took judgment by default. The plaintiffs taxed their costs by items, instead of taxing a gross sum under the act of 1844. Among other items the taxing officer allowed counsel fee $5,00, brief and copies $3,00, drawing and copies of the amended declaration, and other charges connected with the same $6,75 : drawing bill of costs $1,00, and 2 copies $1,00¡
    
      S. O. Shepard, for the defendants
    moved for a re-taxation. He insisted that the plaintiffs were only entitled to a gross sum for attorney and counsel fees under the act of 1844. But if the bill could be taxed by items, the items above mentioned were improperly allowed.
    
      W. J. Hadley, for the plaintiffs.
   By the Court, Bronson, Ch. J.

The bill was properl taxed by items. On judgments by default the plaintiff is onl v restricted to a gross sum for attorney and counsel fees in two . classes óf cases; first, where the damages are assessed by the clerk; and second, where they are assessed upon a writ of inquiry. (Stat. 1844, p. 403, § 10.) In this action, there was no such assessment of damages; and consequently the case did not come within the statute.

But there were some improper allowances. As no issue of law or fact had been joined, a retaining fee of counsel should not have been taxed; (Stat. 1840, p. 327, § 2;) and for the same reason, the charges for a brief were improper. (§ 3.)

The plaintiffs were not entitled to pay for both the original and the amended declaration. That is charging the expenses of their own error in pleading upon the opposite party. The general rule authorized them to amend as of course, and without costs; but it did not give them costs.

As there was no trial or argument, the drawing of the bill of costs should have been taxed only fifty cents, and the copies at twenty-five cents. (§ 3.)

Motion granted.  