Almy . Thurber. could not correct it or show the truth when [2] subsequently sued upon it. The object of the certificate or examination is apparent from the statute; it is to be used as evidence only; and the sheriff and plaintiff are not justified in using it for any other purpose,-e. g., as a representation of fact upon which they may rely in omitting to secure the demand in suit. The certificate or examination will be prima facie evidence against the party giving it in an [] action by the sheriff or the attaching creditor, but is no more conclusive than is an examination of a party in anticipation of an action under section 870 of the code. The doctrine of estoppel applies only to voluntary representations, declarations, admis[*]sions and acts, and has not been extended, as far as I can discover, to declarations exacted by statute. A party certifying or testifying under stress of the law has not the option of speaking or holding his [] tongue; he is required to give testimony, and is to be indulged, therefore, as any other witness, and allowed to correct honest mistakes in his testimony when confronted with it. The judgment should be affirmed with costs. Valiente v. Bryan. VALIENTE AND ANOTHER v. BRYAN. N. Y. MARINE COURT; SPECIAL TERM, APRIL, 1883. $$779, 2455. Costs.-Motion costs, both in actions and special proceedings, to be collected The Code of Civil Procedure makes no distinction between motion costs awarded in an action and those awarded in a special proceeding, and an execution for the collection of the latter may issue under section 779 of the Code. [*] The $30 costs which may be granted to the judgment creditor in proceedings supplementary to execution are not motion costs, but the final costs of the proceeding, payable out of any money which has or may come into the hands of the receiver, or they may be directed to be paid by the judgment debtor. The establishment of a method of collection impliedly precludes their collection in any other way.[3] They cannot be deemed motion costs, and are not therefore collectible by execution. [*] The history of the statutory provisions relating to the collection of costs by precept and execution, stated.['] (Decided April 10, 1883.) Motion to set aside execution issued for the collection of costs. The facts are stated in the opinion. William H. Newman, for motion. Poultney Bigelow, opposed. Wherever there is an order of the court, directing the payment of interlocutory costs, a process or precept in the nature of a fieri facias may issue against the property of the party directed to pay such costs. 4 Valiente v. Bryan. Wait's Pr. 208; Laws of 1847, ch. 390, $ 3; Laws of 1840, ch. 386, § 15. 4 A precept to enforce the payment of costs may issue without any demand or application to the court. Wait's Pr. 209; Mitchell v. Westervelt, 6 How. Pr. 265, 311, note; Lucas v. Johnson, Id. 121; Laws 1847, ch. 390; Weitzel o. Schultz, 3 Abb. Pr. 468. HAWES, J.-Supplementary proceedings were instituted upon return of execution in this action, and during the course of the proceeding $10 costs were allowed by the judge, and also the further sum of $30 at the close of the examination, when a receiver was appointed. The plaintiff has issued a precept to the sheriff to recover these costs, and the present ['] motion is to vacate this precept. Under the pro vision of the Laws of 1840, chap. 386, and the Laws of 1847, chap. 390, a precept could be issued to collect costs, if based upon an order of the court, but these were strictly motion costs (Wesley v. Bennet, 6 Abb. 12). The provisions of the act of 1840 allowed an attachment against the person, but this provision was, in the main, repealed by the act of 1847, which allowed a fieri facias to issue for their collection, and it may be said in general terms that the one was a substitution of process against property for one against the person. The law of 1847 was repealed by chapter 417 of the Laws of 1877, and not being re-enacted by the Code there was no provision for their collection by execution or precept under the provision of section 779 prior to the enactment of 1882 (McCulloch v. Hoffman, 1 Law Bull. 24). The amendment of section 779, passed July 1, 1882, re-enacts in substance the provision of the Laws of 1847, and now allows an execution to issue for the collection of motion costs. The $10 allowed by the court are clearly motion. costs and are collectible by execution, and I know Valiente v. Bryan. [2] of no rule which would prevent collection by such a remedy in a special proceeding as well as in actions. The Code in that regard makes no distinction that I am aware of. The only possible question is as to the classification which should be given to the $30 costs allowed on the appointment of a receiver. The law of 1847 provided that process in the nature of a fieri facias against personal property may be issued for the collection of "costs founded on an order of court." The question of the right to issue a writ for the collection of the $30 costs in supplementary proceedings was fully discussed in the case of Halsaver v. Wilas (11 How. Pr. 450), and it was there held that, inasmuch as supplementary proceedings were special proceedings, the order then made by the judge was not an order of court," but was merely an order of the judge, and did not, therefore fall within the provision of the statute. It will be noticed that no such restriction exists in section 779 of the Code, but only refers to "costs of motion directed by an order." It is clear, therefore, that an order of a judge is as good a foundation for such a writ as an order of the court. 66 The question therefore returns as to whether the $30 costs allowed to plaintiff for costs of this proceeding are to be deemed "costs of a motion directed by an order." The legal history of this provision of the Code is very voluminous, and many nice distinctions have been drawn; but I am inclined to think that the motion costs referred to in this section are confined strictly to the class of motions which were first allowed under the statute 1840, and which statute required the justices of the supreme court to regulate by rule the amount to he allowed upon granting or denying motions. This amount was fixed at that time at $10 to the moving party and $7 to the opposing party if successful, and in peculiar cases the costs to either Valiente. Bryan. party might be allowed to an amount not exceeding $20. The codes of 1848 and 1849 severally modified the rule and provided that costs might be allowed on motions in the discretion of the court not exceeding $10. These provisions of the statute, upon which section 779 is founded, clearly had no reference to statutory or taxable costs, but were special motion costs allowed in the progress of the litigation and collectible at once. If this is the correct view of the intent of the statute, I do not see how the $30 costs can come within the provisions of section 779, although they are directed by an order to be paid. This allowance of $30 is granted by virtue of the statute, and is the final costs in the proceeding and is payable out any money which has come into the hands of the receiver (§ 2455 of Code), or it may be directed to be paid by the judg ment debtor, if so set forth in the order. This would seem to establish a method of collection, and in the nature of things would impliedly preclude its collection in any other way. Specific provision for the collection of final costs which may, perhaps, be deemed tantamount to judgment costs in various special proceedings, are provided for. Section 2250 establishes the costs to be allowed in summary proceedings, and expressly allows their collection by execution. Section 2556 allows costs in surrogate's court to be collected by execution. In supplementary pro[] ceedings the final costs cannot be deemed motion costs, and are not, therefore collectible by execution. The execution, therefore, will be modified in that respect. The examination was regularly adjourned to February 16, and it appeared from the uncontradicted affidavit of plaintiff's attorney that the application was made on that day, although the order was not entered until the 20th inst. The appointment of the receiver was, therefore, regular. Motion granted, unless modified as above. |