
    David Ramsay and others, vs. Robert Marsh and others, defendants in separate suits.
    
    
      JB'y agreement of counsel, commission to take testimony was issued, to be used in several cases':' held that the costs- of it could be taxed but in one of the Cases.
    
    
      Cost's of “ special matter and agreementallowed in cases where the issues were made up, though afterwards discontinued.
    
    The question in this case arose upon a motion of Plaintiff's attorney, to strike out of the bill, of costs two items: first, “ a commission” in each case, which was taxed by the clerk for the defendant’s attorney; and second, “ special matter and argument” which ivas taxed in like manner. It appeared to the court, that by consent between the counsel and to accommodate the plaintiff’s attorney, it was agreed that but one commission should issue, to be entitled of all the cases and to be read in evidence in all. His honor decided that under these circumstances the commission was correctly taxed in each case.
    From this decision the plaintiffs- appealed and moved to have the same reversed on the ground, that the allowance of £2 to the attorney for each commission, was intended by the legislature as a compensation for his actual trouble, and that therefore the taxation alone in these cases was contrary to law.-
    It appeared that in the case against Marsh, the order of nonsuit was confirmed by the constitutional court, at the spring sitting, 1822, and that in all the other cases pleas were filed, issues made up and the cases marked “ discontinued” on- the issue docket, at October term, 1822. The defendants also appealed on the grounds:
    1st. Because under the circumstances of the case, the taxation should not have been opened:
    2d. Because the item of special matter and argument was properly allowed, and should not have been stricken out:
   The opinion of the court ivas delivered by

Mr. Justice Colcock. .

Under the circumstances of these cases, the agreement of the counsel to make one commission ansiver for all the cases was a, very proper one; as a recovery on the part of the plaintiff would no doubt have rendered it unnecessary in the other cases 1o go again into his title, and one commission would have been held sufficient by the court. One only therefore can be pro* .perly charged, and the £2 charged, in all the cases not tried, must be stricken out-.

As to the second charge, it has been the established practice to allow it in all cases, not within the summary jurisdiction, where the issue has been made up, and therefore those charges may be allowed — in all the cases where issue was regularly made up and the cases docketted. The motions are granted.

Johnson, Huger, Richardson, and JYott, Justices, concurred

Gantt, Justice,

dissenting.

1st. As respects the charge for commission in each case, I at first doubted as to the correctness of this charge, because the same interrogatories were made to apply to each case, and it appeared at the first blush to be unreasonable, that where only one commission had in fact been issued, although entitled' of all the cases wherein David Ramsay and others were plaintiffs against the several defendants, that this item should be allowed in each bill of costs; but then it was made to appear that the attornies for the defendant had consented to this mode of obtaining the testimony, at the instance of the plaintiffs attorney, and to save him the necessity of issuing in each casé. Now as the trespasses for which the several actions were brought were several and distinct, and the commission entitled of each case, whereby its applicability to each was recognized and admitted, I thought the charge, allowable. But I am less dissatisfied with the reversal of the decision below, as respects the commission, than the item for special matter and argument.

By the fee bill, the several items are particularized which go to make up a bill of costs: among these is enumerated the charge for “ special matter and argument.” What shall constitute special matter and argument is -not defined; but from the terms used it must necessarily mean some incidental matter in the progress of the suit, wherein in truth and fact argument was deemed necessary. Such as an argument on a demurred one for the continuance of a cause which stands marked for trial, and the like. But when the plaintiff discontinues a cause by leave of court, which is always granted, this cannot in my view constitute special matter and argument, within the meaning of the act. I infer this, because a defendant cannot consistently with the established usage and practice of the courts, oppose a motion for nonsuit or discontinuance. A discontinuance by leave of court is a'voluntary withdrawal of the suit, and puts' an end to it, and it cannot readily appear how it should sub-serve-,-.,]the interest of a defendant to oppose a motion of this kind. Under this view of the law, I thought and so decided, : that the charge for special matter and argument,-in all the cases discontinued by the plaintiff, should be stricken out and that it should be allowed only in.the case brought up to the constitutional court, where the question was argued, whether the plaintiffs were entitled to support their action or should be non-suited, as had been ordered below.

A. Bowie, for plaintiffs.

Noble and War flaw, for defendants.  