of inability to perform the act required, or to endure the imprisonment, be discharged from imprisonment, by the court or judge committing him, or the court in which the judgment was rendered, or such terms as may be just.

TITLE X.

Of the Costs of Civil Actions.

303. All statutes establishing or regulating the costs or fees of attorneys. solicitors and counsel in civil actions, and all existing rules and provisions of law restricting or controlling the right of a party to agree with an attorney, solicitor or counsel, for his compensation, are repealed; and hereafter the measure of such compensation shall be left to the agreement, express or implied, of the parties. But 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 in this act termed costs.

304. Costs shall be allowed, of course, to the plaintiff upon a recovery, in the following cases: 1. In an action for the recovery of real property, or when a claim of title to real property arises on the pleadings, or is certified by the court to have come in question at the trial.

2. In an action to recover the possession of personal property.

3. In the actions of which a court of justice of the peace has no jurisdiction.

4. In an action for the recovery of money, where the plaintiff shall recover fifty dollars; but in an

action for assault, battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation or seduction, if the plaintiff recover less than fifty dollars damages, he shall recover no more costs than damages. And in an action to recover the possession of personal property, if the plaintiff recover less than fifty dollars damages, he shall recover no more costs than damages unless he recovers also property the value of which, with the damages amounts to fifty dollars, or the possession of property be adjudged to him, the value of which, with the damages, amounts to fifty dollars; such value must be determined by the jury, court or referee by whom the action is tried. When several actions shall be brought on one bond, recognizance, promissory note, bill of exchange or other instrument in writing, or in any other case, for the same cause of action, against several parties who might have been joined as defendants in the same action, no costs other than disbursements shall be allowed to the plaintiff in more than one of such actions, which shall be at his election, provided that the party or parties proceeded against in such other action or actions shall, at the time of the commencement of the previous action or actions, have been within this state, and not secreted.

305. Costs shall be allowed, of course, to the defendant, in the actions mentioned in the last section, unless the plaintiff be entitled to costs therein.

306. In other actions costs may be allowed or not, in the discretion of the court.

In all actions where there are several defendants, not united in interest, and making separate defenses

by separate answers, and the plaintiff fails to recover judgment against all, the court may award costs to such of the defendants as have judgment in their favor, or any of them.

In the following cases the costs of an appeal shall be in the discretion of the court:

1. When a new trial shall be ordered.

2. When a judgment shall be affirmed in part and reversed in part.

307. When allowed, costs shall be as follows:

1. To the plaintiff, for all proceedings before notice of trial in actions where judgment for failure to answer can be taken without application to the court, fifteen dollars; where judgment can only be taken on such application, twenty-five dollars; for all proceedings after notice of and before trial, fifteen dollars; for each additional defendant served with process, not exceeding ten, two dollars, and for each necessary defendant in excess of that number, served with process, one dollar.

2. To the defendant, for all proceedings before notice of trial, ten dollars; and for all proceedings after notice of and before trial, fifteen dollars.

3. To either party, where a new trial shall be had, for all proceedings after the granting of and before such new trial, twenty-five dollars; for attending upon and taking the deposition of a witness conditionally, or attending to perpetuate his testimony, ten dollars; for drawing interrogatories to annex to a commission for the taking of testimony, ten dollars; for attending the examination of a party before trial, ten dollars; for making and serving a case, or case containing exceptions, twenty dollars, except that where the case shall necessarily contain more

than fifty folios, there shall be allowed ten dollars in addition thereto; and for making and serving amendments thereto, ten dollars. To the plaintiff, for the appointment of a guardian of an infant defendant, ten dollars; but no more than ten dollars shall be allowed for the appointment of guardians in any one action. To the plaintiff for procuring an order of injunction, ten dollars.

4. To either party for the trial of an issue of law, twenty dollars; for every trial of an issue of fact, thirty dollars; and where the trial shall necessarily occupy more than two days, ten dollars in addition thereto.

5. To either party on appeal, except to the court of appeals, and except appeals in the cases mentioned in subdivisions 1, 3, 4 and 5 of section 349, and except in cases mentioned in the second paragraph of section 344, before argument, twenty dollars; for argument, forty dollars; and the same costs shall be allowed to either party before argument and for argument on application for judgment, upon special verdict, or upon verdict subject to the opinion of the court, or for a new trial on a case made, and in cases where exceptions are ordered to be heard, in the first instance, at a general term, under the provisions of section 265.

6. To either party on appeal to the court of appeals, before argument, thirty dollars; for argument, sixty dollars; and when a judgment is affirmed, the court may, in its discretion, also award damages for the delay, not exceeding ten per cent on the amount of the judgment; for preparing and serving a case, or case containing exceptions, in appeals to the court of appeals, twenty dollars.

7. To either party, for every circuit or term, not exceeding five circuits, and five special and five general terms, at which the cause is necessarily on the calendar and is not tried, or is postponed by order of the court, ten dollars; and for every term not exceeding ten, excluding the term at which the cause is argued in the court of appeals, ten dollars; but in an action hereafter brought to recover dower, before admeasurement, of real property aliened by the husband, the plaintiff shall not recover costs unless it appear that the dower was demanded before the commencement of the action and was refused.

The same costs shall be allowed to the plaintiff in proceedings under chapter 2, title 12, of the second part of this Code (sections 375 to 381), as upon the commencement of an action.

308. In addition to these allowances, there shall be allowed to the plaintiff upon the recovery of judgment by him in any action for the partition of real property, or for the foreclosure of a mortgage, or in any action in which a warrant of attachment has been issued, or for an adjudication upon a will or other instrument in writing, and in proceedings to compel the determination of claims to real property, the sum of ten per cent on the recovery, as in the next section prescribed, for any amount not exceeding two hundred dollars; an additional sum of five per cent for any additional amount not exceeding four hundred dollars; and an additional sum of two per cent for any additional amount not exceeding one thousand dollars.

And in the actions above named, if the same shall be settled before judgment therein, like allowances