Hager and Wife agt. Danforth, 8 How. Pr. 448

Parker, Justice. I think the charge of ten dollars for the Delaware special term was properly allowed. That charge is allowable “ when the cause is necessarily on the calendar, and is not reached or postponed.” The defendant’s attorney having noticed the cause, and put it on the calendar, cannot say it was not “necessarily ” there. The cause was “reached” and was not “ postponed,” in the sense contemplated by the statute, but was submitted to Justice Wright, on the suggestion of the judge, and by consent of the parties.

The stipulation provided that ten dollars costs of defendant for noticing the cause and placing it on the calendar of the Delaware circuit, should abide the event of the suit, and it is at least equally fair and legal, that the plaintiff, who was compelled to attend there, on the defendant’s notice, should be entitled to the same charge. The clerk was also right in allowing the charge of fifteen dollars trial fee, for arguing the cause before Justice Wright. It was so decided, and I think correctly, in Ellsworth agt. Gooding, (8 How. Pr. R. 1;) and Van Schaick agt.

Winne, (id. 5.) The remaining question is, whether it was necessary to state, m the bill of costs, the items of witnesses’ fees and of postage, or whether it was sufficient to state them in gross in the bill,, and to set them forth particularly in the affidavit presented on taxation. The counsel for defendant, relying on the former practice in Chancery, cites Rogers agt. Rogers, (2 Paige R. 459,) where, in the syllabus of the case it is said, that each item of disbursements must be particularly specified in the bill of costs.

But on reference to the opinion of the Chancellor, at page 468, it will be seen that the decision was, that “ every item for postage, or other disbursements, should be stated particularly in the bill of costs or in the affidavit/” and this was. required in accordance with 2 R. S. 653, § 7, which provided, that disbursements should not be allowed without an affidavit specifying the items thereof particularly. And in the case cited at page 469, the propriety of obviating the objection, when made before the taxing officer, by furnishing on the spot, a more particular affidavit, is recognized.

The general practice, however, was to state the items of disbursements, and particularly of postage, in the bill of costs, because it was more convenient to do so. But the present practice is controlled entirely by the Code, (section 311,) which provides that “ the disbursements shall be stated in detail, and verified by affidavit which shall be filed.” This requirement is satisfied by inserting the items in detail in the affidavit. The Code does not require that the items should be inserted in the bill of costs.

Its object is fully attained by placing on file the affidavit in which the items of disbursements are set forth. There was no error, therefore, in the adjustment by the clerk, and the motion must be denied, without costs.