
    Sylvester Hall vs. Heman V. Prentice.
    An action brought uponpi’omises—the Defendant puts in an answer, but neglects to file an affidavit of merits at the circuit—the Plaintiff takes an inquest—held, not a case for per centage under § 263 of the code, in addition to the costs allowed by § 262. It is only “ in difficult or extraordinary cases,” that such per centage is authorized, and is designed to compensate for great labor and extraordinary services, and the discretion given to the court, in its allowance, is confined expressly to causes of that description.
    Qtmre.—Whether it would not have been better to have had the rule as to costs fixed and certain, and thereby have made the practice uniform in that respect, and have obviated the evil arising from the great difference of opinion which may exist among judges as to whether a case is difficult or extraordinary ?
    
      Albany circuit,
    
    
      Dec. 6, 1848.
    Before Parker, Justice. In this case an action was brought upon promises and an inquest was taken, the Defendant having neglected to file an affidavit of merits.
    Otis Allen, for Plaintiff, asked for an allowance of the per centage under the 263d section of the code.
   Parker, Justice.

It is only “in difficult or extraordinary cases,” that the court is authorized, by § 263 of the Code of Proceedure, to make an allowance of the per centage in addition to the costs provided by § 262; and it is certainly neither a difficult nor an extraordinary matter, for a Defendant to put in an answer, and afterwards make default at the circuit.

It would be, perhaps in many cases, a just punishment upon the Defendant to impose such additional costs, for having put in a false answer for the purpose of delay; but that is a question for the legislature, and not for the courts. As the law now stands, I think it is not applicable to such a case. The per centage is designed to compensate for great labor and extraordinary services, and the discretion given is confined expressly to causes of that description.

I regret that any such power has been conferred on the courts. There will be great difference of opinion among the judges as to whether a case is difficult or extraordinary, and no uniformity of practice. I think it would have been much better to have had the rule as to costs fixed and certain. But we must take the law as we find it, and although it may be very difficult to decide to what cases the allowance is applicable, I think it is quite clear that this cause is not of that character.  