The district attorney appealed from the taxation by the county judge under § 5 of ch. 375 of Session Laws of 1839.

T. M. HOWELL, for appellant.

G. GRANGER, for supervisors of Ontario county.

WELLES, Justice. The first section of the act entitled "an act to regulate the fees of district attorneys, and to repeal the several acts relating to the same, passed May 7th, 1839," among other things enacts as follows: "No other or greater fees shall be allowed to any district attorney in any county in this state, (the city and county of New York, and the counties of Erie, Genesee, Rensselaer, Washington and Onondaga excepted,) for any services rendered by him in the discharge of the duties of his office as chargeable against the said county, than such as are hereinafter provided." The section then proceeds to provide for various services of the district attorney, and in relation to subpoena, is as follows: "For every subpoena actually and necessarily issued, returnable before a grand jury or court, twenty-five cents, including subpœna ticket; but no other allowance shall be made for any draft or copy of subpoena, or any draft or copy of subpoena ticket for any witness; and no more than one subpoena and subpoena ticket shall be allowed for each witness subpoenaed either before the grand jury or court; and no allowance shall be made for any subpoena and subpoena ticket issued for the same witness, more than once in the same cause, except when it shall become necessary to subpoena the same witness before the court, after having been subpoenaed before the grand jury."

This seems to me to settle the question. Only one subpoena is to be charged for the same witness in the same cause, after the indictment found; and only one for the same witness before the grand jury; so that no more than two subpoenas can be charged, in any case, for the same witness, from the commencement of the prosecution before the grand jury to its conclusion by verdict and final judgment. There is no room for construction or interpretation of the statute. It may, in some cases, produce inconvenience to district attorneys, and may possibly require them, occasionally, to render a service without compensation. Indeed, this they have to do every term of the court. They are required to attend before the grand jury for the purpose of examining witnesses in their presence and giving them advice upon legal matters, (2 R. S. 725, § 32,) for which no compensation is provided; besides a great variety of other duties and labors, as the experience of almost every vigilant district attorney will prove. The Legislature has seen fit to select from their various duties a portion, for which compensation is given, doubtless

deeming that sufficient for the whole. Whether the compensation is adequate, is not for courts to determine.

With respect to the particular question under consideration, it is believed the Legislature upon the subject was prompted by complaints of recklessness, not to say rapacity, of some district attorneys, who were guilty, among other things, of neglecting to have the witnesses recognized, and thus creating a necessity for issuing subpoenas a second time, or oftener, for the same witnesses in the same cause. The evil was not only, or mainly, the expense of the additional subpoena, but it led necessarily to the expense of serving them, which, upon an average, was quadruple that of issuing them. To avoid this, the district attorney is to put the witness under recognizance to appear, if another attendance is necessary. If the witness disobeys the subpoena when duly served, he is in contempt, and may be brought in on attachment, and will be compelled to pay the expense of the proceeding against him, and may be fined besides, unless he shows a good excuse for not attending. After a witness is duly recognized and neglects to attend in pursuance of his recognizance, he may be proceeded against by attachment in the same manner as if he had failed to appear in obedience to a subpoena. (Session Laws of 1845, ch. 180, p. 187, § 20.) In this way the attendance of witnesses may always be secured, if at all, at all the different terms of the court, after the indictment is found, upon being once subpoenaed.

It may be that the statute is too strict with the district attorney in not allowing him to charge for the subpoenas for witnesses in case of a second trial becoming necessary in consequence of the disagreement of the jury on the first, as was the case with respect to a portion of these rejected items. It is usual, after the testimony on a trial is closed, to discharge the witnesses. It would be regarded oppressive upon them to require them to remain in attendance after their examination is closed, and until the jury are discharged, or to enter into a recognizance for further appearance in the same cause. But however this may be, the remedy is with the Legislature, and not with the judicial authorities. The statute before recited is too specific and comprehensive to leave any doubt upon the subject.

The taxation by the county judge is affirmed, and the appeal dismissed.

SUPREME COURT.

JACOB R. HALLENBECK Vs. PHILIP B. MILLER.

Where, under the code, a sheriff is sued for an official act done by him and recovers judgment against the plaintiff, he is not entitled to recover double costs.

It seems, that the whole title of the Revised Statutes, establishing and regulating costs, of which the section allowing double costs is a part, is repealed by the code. (§ 303.)

Albany Special Term, Feb. 26, 1850.-In this case the defendant was sued for an act done as sheriff of Columbia county, and recovered judgment against the plaintiff. The defendant's counsel now moved for double costs, under the provision of the Revised Statutes.

C. L. MONELL, for defendant.
N. HILL, Jr., for plaintiff.

PARKER, Justice. It was provided by the Revised Statutes, (2 Rev. Stat. 617, § 24,) that, in cases like this, the defendant should recover "his taxed costs and one-half thereof in addition :" and the next section declared that such additional costs belonged to the defendant and that the counsellors, attorneys and other officers, and the witness and jurors should be entitled to receive only single costs. The question here presented, is, whether this provision allowing double costs was repealed by the code. Section 303 of the code repeals "all statutes establishing or regulating costs, or fees of attorneys, solicitors and counsel in civil actions," and declares that "there may be allowed to the prevailing party upon the judgment certain sums by way of indemnity for his expenses in the action," which allowances are to be termed costs.

All costs are now made what the extra allowance to a sheriff was formerly declared to be, indemnity to the party, and not the measure of compensation for the attorney and counsel.

The section of the Revised Statutes allowing double costs, was a part of the title establishing and regulating costs, and I think it was the intention of the Legislature to repeal the whole of it, and to provide an entirely new measure of indemnity. The repealing language of the code is very broad and comprehensive, and other provisions of the code are, I think, inconsistent with the idea that double costs were to be recovered under it. Extra allowances are no longer fixed by law, either as to the amount or the cases in which they are to be allowed: but the courts are authorized to make such allowances, by a per centage on the amount recovered, or the value of the property in controversy, in difficult or ex

traordinary cases and in certain other proceedings. I cannot think the Legislature intended that in such cases the costs were to be doubled.

The Revised Statutes allowed "the taxed costs and one-half thereon in addition." Under the code there is no taxation, except the final entry by the clerk, in the judgment, of the charges for costs and disbursements. The language is inapplicable to the present mode of proceeding; and the clerk is not authorized to enter in the judgment any more than is mentioned in sections 310 and 311; and after making the entry, which takes the place of taxation, the clerk certainly has no power to alter the judgment by adding to it one-half the amount.

I think the motion should be denied, but the question being a new one, without costs.

SUPREME COURT.

MYERS VS. FEETER.

After the service of an answer, the defendant may move to change the place of trial before the service of a reply and before the expiration of the time to reply.

Essex Special Term, January, 1850.-B. POND, for defendant, moved to change the place of trial from Schenectady to Herkimer upon affidavits, showing material witnesses in the latter county. He said it was clear from the recent decisions, and the 47th rule of court, that the motion was not premature.

J. E. McVINE, for plaintiff, read an affidavit showing that the complaint was served on the 5th December, 1849, and an answer served on the 25th of that month by mail, which gave the plaintiff until the 3d of February to reply. That the answer set up new and material matter in defence, to which the plaintiff intended to reply. He said the parties could neither of them know what witnesses would be necessary until the issues were all taken. That the code does not abolish the distinction between venue properly and the place of trial. The venue properly, is the county in which the action must be tried according to sections 123, 124, 125, of the code, in all which cases the court have power to change the place of trial, for cause. He further contended, that by section 126, the Legislature had provided a simple remedy to the opposite party if the venue properly, was laid in the wrong county. In such case, the defendant may,

before the time for answering expires, demand in writing that the trial be had in the proper county. If the defendant pursues this simple remedy without success, the court would undoubtedly compel the plaintiff to pay the costs of the motion. But if he neglect this, the remedy given by statute for the change of the venue, the venue must remain in the improper county subject to the right of the defendant to move the court to change the place of trial, and that this can only be done on good cause shown after issue joined. The venue stands, but the place of trial is changed for convenience of witnesses or other cause. He cited in support of his views, (Code, §§ 123, 124, 125, 126; Barnard v. Wheeler, 3 How. Pr. R. 71; Beardsley v. Dickinson, 4 id. 81; and Lynch v. Mosher, id. 86, 89.)

He also submitted that the distinction made by the code between the change of venue and the place of trial was overlooked in the adoption of the new rules. (See Rules Sup. Ct., ed. 1837, R. 94.)

HAND, Justice.-Mr. Justice SILL, in Lynch v. Mosher, (4 How. Pr. R. 86,) came to the conclusion that the defendant need not move to change the place of trial until after issue joined. But I do not understand him, or Mr. Justice PARKER, in Beardsley v. Dickinson, (id. 81,) to say that the motion cannot be made until the reply is in, or the time for replying has expired. On the contrary, in the latter case, the motion was decided upon the merits, notwithstanding it appeared that the reply had not been served. And the review of the cases by the Judge, in Lynch v. Mosher, to my mind, shows clearly that the motion may be made before reply. The language of the former statute, under which it was held that the defendant must move the first opportunity, after service of the declaration, is very similar to that of the Judiciary Act. (2 R. S. 309, § 2; Jud. Act, § 49; Code, § 125; 11 Wend. 186; 4 Hill, 63, n.) In addition to this such, too, is the plain reading of the 47th rule of this court: "No order to stay proceedings for the purpose of moving to change the place of trial shall be granted, unless it shall appear from the papers that the defendant has used due diligence in preparing the motion for the earliest practicable day after the service of the complaint. Such order shall not stay the plaintiff in putting the cause at issue, or taking any other step except giving notice and subpoenaing witnesses for the trial without a special clause to that effect," &c.

These rules were made by the whole court, under the authority of the code, and may be considered as giving construction to the statute. The same court adopted the same rule immediately after the Judiciary Act became a law.

But the plaintiff shows that the answer contains new and material matVOL. IV. 31