
    Jackson, ex dem. Gorman, against Hooker.
    Affidavit, upfoundanorder fer the exammation of a ■witness de beaiiuo"’ the'act te perpetuate of6 witnesses^ in certain ca-eh. 3t,i R. L.
    
    Onondaga County, ss. J. ,M. Hooker, of the town of T. in the county of Cortland, the defendant, in the above entitled suit, being duly sworn, denoseth and saith, that the 7 ° ^ ¡ said cause affects the title of lot No. 94, in the township °f Fabius, now town of Truxion, in the county of Corlland; and that this deponent is the defendant in the said suit, and interested in the said lands; and that Elizabeth Qoston, of the town of Winfield, in the county of Herkimer, in this state, widow, is a material witness, and necessary m the defence of the said suit, as this deponent is advised by Ms counsel, and verily believes to be true.
    
      J. M. H-
    
    Sworn, this 3d day of Sept. 1823,'j before me, Nehemiah H. Ey/rll, first »,
    Judge of Onondaga Common Pleas, f Counsellor, &e. J
    
    Order for upon” th&ttlie witness will be examined, inade pursu- and the^eTto amend the «mTss lo®-) -
    The above defendant, having applied to me for the exam-¡nation of Elizabeth Costoh, of the town of Winfield, in (he COunty of Herkimer, as a witness on his behalf, in the above J . cause, according to the statute to perpetuate the testimony óf witnesses in certain cases, and having-made such oath as is required by the said statute, let notice, therefore, be givcn to the above plaintiff, or his attorney, that, at the house -of J. Q. in the town of Winfield, in the county of Herkifner, on the 19th day of Sept, inst, at' 10 o’clock in the forenoon, the said Elisabeth Costan. will 'he examined, de bene.
    
    
      
      nsse, "before Townsend Ross, one of the Judges of the Court of Common Pleas, in and for the county of, Cortland, Counsellor, &c.
    
      Nehemiah H. Earll, first Judge of Onondaga Common Pleas, Counsellor, &c.
    Sir—Take notice, that, in pursuance of an order this day made by the Hon. Nehemiah II. Earll, first Judge of the Court of Common Pleas, in and for the county of Onondaga, a Counsellor of the Supreme Court, &c. Elizabeth Cos-ton, of the town of Winfield, in the county of Herkimer, widow, will, on the 19fA day of September, inst. at 10 o’clock in the forenoon, at the house of J. G. in the said town and county, be examined, de bene esse, as a witness for the above defendant, according to the statute to perpetuate the testimony of witnesses in certain cases, before the lion. Townsend Ross, one of the Judges of the Court of Common Pleas, in and for the county of Cortland, a Counsellor of the Supreme Court, &c. Dated Sept. 3, 1823.
    Notice there< "^Where the ?arty rf,oeivt. examination ^tute, tends accoron?rameato examine OB the other aide, and, cense* quently, no examination takes place> the court will not order the costs of attendance to he paid, on mo* tion.
    The statute makes no pro* vision for the. casts ;
    And, if allowable by the general provisions of the act reg?» ulating fees, they are pro-' perly taxable, in the fingí bill.
    Your’s, &c.
    
      8. Forman, defendant’s att’y.
    . David Woods, Esq,
    plaintiff’s att’y,
    Mr, Woods appeared at the day and place mentioned in the notice, being about 20 miles distant from his residence, but no one attended on the part of the defendant, and the witness was not examined.
    
      J. A. Spencer,
    
    now moved for a rule, that the defendant pay such costs as the plaintiff should be legally or equitably entitled to, for such attendance.
    
      II. B. Davis, contra,
    said, -that no costs being allowed by the statute, none could be taxed.
   Curia.

The statute under which this proceeding took place, says nothing about the costs. The plaintiff’s attorney is not, therefore, entitled to any compensation for his services, unless the ease is embraced by the general pro vis? ion in the act regulating fe.es for ^attendance, on examining a witness out of Court.” If so, the item is properly taxabl£¡ ^ the final bilL

Motion denied, with costs. 
      
      
         2 R. L. 16.
     