
    Henry Herring vs. Matthias A. Hallenbeck, et al.
    It is not necessary to move the court for a precept to collect the amount of costs, which are given for appearing prepared to oppose a motion, which is not made pursuant to notice. The precept issues under the statute.
    
      Motion by plaintiff ex pórte, at the last December special term, for 
      
      leave to issue a precept to collect costs of a motion.—Defendant’s attorney served affidavits and notice of motion to change the venue in this cause, for the September special term, but failed to make the motion; and on the last day of the term, plaintiff took a rule for seven dollars costs, for preparing and appearing to oppose the motion, not made pursuant to notice. No copy of the rule has been served on defendant, or demand made for payment of costs. And plaintiff asked leave at this term, to issue a precept.
    C. Stevens, Plffs Counsel. H. L. Palmer, Plffs Mty.
    
   Bronson, Justice.

It is not necessary to make a motion for a precept; it issues under the statute as in the ordinary way, where a motion is denied with seven dollars costs.  