Legal Opinion

Potter v. Richards

New York Supreme Court

Decided February 15, 1834PublishedCited by 3 opinions

The plaintiff having commenced a suit in this court against the defendant, obtained a warrant against him under the provisions of the act to abolish imprisonment and punish fraudu* lent debtors, Laws of 1831, p. 396, § 3, 4, 5, whereon the defendant was arrested and brought before a commissioner, who, after receiving the defendant’s affidavit and examining him on oath, dismissed the complaint and directed the defendant to be discharged from custody.

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The plaintiff having commenced a suit in this court against the defendant, obtained a warrant against him under the provisions of the act to abolish imprisonment and punish fraudu* lent debtors, Laws of 1831, p. 396, § 3, 4, 5, whereon the defendant was arrested and brought before a commissioner, who, after receiving the defendant’s affidavit and examining him on oath, dismissed the complaint and directed the defendant to be discharged from custody. The defendant thereupon made out a bill of costs incurred in the proceeding, and had the same taxed by a commissioner, on notice to the…

1Opinion of the Court

By the Court,

Savage, Ch. J.

A taxation was undoubtedly proper; there was a suit pending, and in a proceeding had therein, the defendant became entitled to costs, which could be liquidated only by taxation. I am of opinion, however, that the commissioner erred in the taxation. Besides fees to officers, the statute allows costs and expenses incurred by the defendant; these terms do not moan all expenses which may be incurred ; they mean only taxable costs. When the legislature intend to give a party his disbursements, they use that term; they have not done so here, and the defendant can have no…

2Cited by3 opinions

  1. Apperson v. Mutual Benefit Life InsuranceSupreme Court of New Jersey · 1876
  2. Superintendents of the Poor of the Ontario v. MooreNew York Supreme Court · 1835
  3. Van Hovenburgh v. CaseCourt for the Trial of Impeachments and Correction of Errors · 1842

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