Buzard v. Gross , 4 How. Pr. 23 ( 1848 )

Welles, Justice.

By the 2d section of the act, ch. 390, Laws of 1847, p. 491, it is provided that no person shall be imprisoned for the non-payment of interlocutory costs, or for contempt of court in not paying costs, except attorneys, solicitors and counsellors and officers of court, when ordered to pay costs for misconduct as such, and witnesses when ordered to pay costs on attachment for non-attendance.

The second section of the act supplies the remedy by process in the nature of a fieri facias against personal property, for the collection of costs, in the cases where the remedy by attachment had been taken away by the second section.

The section recited forbids imprisonment for the non-payment of “ interlocutory costs,” or for contempt of court in not paying costs, except in certain specified cases of which this is not one.

I do not think the present is a case of interlocutory costs. If judgment had not been perfected before the motion for a new trial these costs would have gone in with the general costs of the plaintiff, and formed a part of his judgment in the cause—and inasmuch as the order denying the new trial directs them to be paid by the defendant, his refusal to pay them would be contempt of court, for which under the former law and practice he would be liable to attachment. (3 Hill, 452.)

This statute, however, gqes farther, and abolishes imprisonment not only for interlocutory costs, but “for contempt of court in not paying costs.” This jn’ovision is general in its items, and I think embraces this case. An order may therefore be entered requiring the defendant to pay this bill on being served with the rule of the court directing its payment, and with the taxed bill, accompanied with a demand of payment, or that process issue in the nature of a fi. fa. for their collection.