
    Sawyer, et al. v. Studley et al.
    
    It is the termination oC the suit which entitles one party to costs against the other, and the law then in existence, is the rule by which they are to be ascertained. A different rule prevails between attorney and client.
    Affidavits are required in certain cases, before taxation of costs.
    Petition for re-taxation of costs.
    
      E. S. Lee, for the petition.
    
      íl. H. Emmons, contra.
   The Chancellor.

This case was decided in January last, and, by the decree of the Court, costs were adjudged to the defendants. The solicitor’s services were rendered in part, after the law of 1840, regulating fees, was passed, laws 1840, p. 175, and before the repeal of that part of the revised statutes relating to the same subject, in 1841. Laws 1841, p. 10. These services were charged in the bill of costs, and allowed on taxation, at the rates fixed for such services by the revised statutes. In this the taxing master erred. It is the termination of the suit that entitles one party to recover costs against the other, and, consequently, the law then in existence, is the rule by which they are to be ascertained. The People v. Herkimer Common Pleas, 4 Wend. R. 210; Smith v. Castlers, 5 Wend. R. 81; Dean v. Gridley, 11 Wend. R. 167. A different rule prevails between attorney and client.

By the laws of 1840, solicitors are entitled to $20 in all cases, on final hearing, and in all cases of hearing, other than on final hearing, to $10 ; but once, however, in each case. Every hearing by which a cause is finally disposed of, is a final hearing; and the solicitor is entitled to $20, and no more, unless there has been a previous hearing upon a demurrer, or plea, or pleadings and proofs without a final disposition of the cause ; in which case he is entitled to $10 for such hearing, in addition to the $20.

The revised statutes, p. 549, § 35, provide, where there are charges in a bill of costs for the attendance of any witnesses, or for copies or exemplifications of documents or papers, or for any other disbursements, except to officers for services rendered, that such charges for witnesses shall not be taxed, without an affidavit stating the distance they respectively travelled, and the days they actually attended ; and such charges for copies shall not be taxed, without an affidavit that such copies were actually and necessarily used, or were necessarily obtained for use; nor shall such disbursements be allowed without an affidavit specifying the items thereof particularly, nór unless they appear to have been necessary, and reasonable in amount. This chapter of the revised statutes is still in force, and not repealed by the act of 1841.

Let an order be entered for a re-taxation of the bill of costs, by the taxing master, on the principles above stated.  