Anonymous agt. Anonymous. who was a defendant in No. 2; and that the costs of the said AB, as solicitor for the plaintiff in No. 1, subsequent to said order of consolidation, be retaxed by the said referee, or one of the justices of this court, so that his costs be not affected by the settlement so made with said CD and others. And it was further ordered that, upon payment by the said CD of the said several amounts, as above proposed, that all proceedings to retax any of the bills of costs in said suits of C- D- and the said solicitors for the defendants in No. 2, be discontinued and terminated; and that the order of the 1st Dec., 1849, providing for the retaxation of the costs in said suits, be deemed satisfied, so far as related to the said solicitors last above named, and so far as was not inconsistent with the terms of this order; it being intended, however, that said order to retax the costs should remain in force as against the said AB, and that his liability under the said order, or under any order or decree made in the course of the proceedings to retax said costs, should not be in any manner affected thereby, further than as before provided. And it was further ordered on the question submitted by said referee, that in the taxation of the costs of the said AB—, subsequent to the consolidation, he be allowed for all disbursements made by him, and properly taxable in the cause, and of all services actually rendered by him, and not rendered by C—D———, if properly taxable; and if in any case services were rendered by him in said cause, and the same services were also rendered by said C- D-, since the consolidation, and were properly taxable, the referee should determine, under all the circumstances of the case, whether either was entitled to the payment for the whole of such services, or for only part thereof; and if for part only, then how much should be paid to each, and allow said A― B—the part to which he might be entitled; but the part to which said CD would be entitled should be deemed satisfied by the compromise made as aforesaid; and in no case when the same services were rendered both by said A- Band Anonymous agt. Anonymous. said CD, should any greater allowance be made to both than if there had been but one service in that matter. On the 21st January, 1854, the referee made his second report; by which it appeared, that on the retaxation, in pursusuance of the last above mentioned order, he struck out from the bill of costs of said AB, solicitor, subsequent to the consolidation, items amounting in the aggregate to the sum of $377.30, and had retaxed the said bill at the sum of $260.19. Upon this report, and the previous report made upon the taxation, and upon the orders and papers theretofore served in the matter of retaxation, the said E F gave notice that Fhe should, at a special term to be held on the 25th March, 1854, move that the two reports of the referee upon retaxation be confirmed; and that an order be made thereupon requiring said A B— to pay into the hands of the referee in the suits for partition, the amount deducted from said AB's costs in said causes, as specified in said reports. tain lands in this city, which, on his decease, were to pass to his father's grand-children, pursuant to his father's will. He died on Sunday, June 13, 1847. There were sixty-eight grandchildren surviving him. These two complainants, and their respective solicitors, were in such hot haste for a partition of the property, and of such advantages as might accrue to the party who might be the first to commence an action; that the one filed his bill for partition at 9 o'clock the next morning, and soon after served a subpœna to appear and answer on one of the defendants; the other complainant filed his bill at 11 o'clock on the same morning, and soon after served a subpœna. The property was sold for something over $8,000; and of this sum something like $6,800 were consumed in costs. It is not surprising, therefore, that when the guardian of one of the infant defendants brought this matter before the court at general Anonymous agt. Anonymous. term, the court ordered a retaxation of the costs; and that any excess should be refunded by the respective solicitors. An appeal was taken from that order, and dismissed by the court of appeals. The solicitors then appeared before the taxing officer, and after a long investigation, and great delays, not attributable to that officer, he has completed his report, showing how much should be refunded by the solicitor for one of the complainants; the solicitor for the other complainant having prudently arranged the matter so far as he was concerned. The solicitor for the guardian now moves, on the report of the taxing officer, and a mass of previous orders and affidavits, for an order, that the solicitor who, according to the report, has been overpaid, should refund the excess. It might be expected that the opposition to the motion would be founded on some supposed error of the taxing officer. No such thing is intimated; but it is insisted that the original order of the court is irregular for various reasons;-the principal one is, that the general term can only make an order on an appeal. That point has been repeatedly before this court, and it has always been held that there is but one supreme court; and that it is the supreme court which acts and decides, whether it acts through the special term or the general term. None of the ancient powers of the general term are taken from it; and it can therefore make an original order in any matter in which it might formerly have made such order. The Code specifies the manner in which appeals shall be brought before the general term, but does not attempt to limit its powers. That branch of the court very properly refuses to act in most cases in which the special term can act; but that is not from any doubt of its power to act, but as a matter of expediency, and for the sake of the dispatch of business. The other objections, if originally valid, are of such a nature that they must be deemed waived by proceeding under the order, and by the omission of any motion for some years, to set aside that order. The motion must be granted, with costs. Moore agt. Smith & Marshall. SUPREME COURT. MOORE agt. SMITH and MARSHALL, In an action against a constable and his surety, for official liabilities, the plaintiff may, by proper allegations in his complaint, unite the following causes of action : 1. That the constable levied upon sufficient property of the defendants to satisfy the plaintiff's execution then in his hands. 2. That the constable neglected to return the execution according to its requirements, and 3. That the constable keeps and detains the money he has received on the execution. But these several causes of action must be separately stated. And where a complaint contains these several causes of action, not separately stated, a demurrer to the complaint, in order to reach the difficulty, must specify particularly, as a ground of demurrer, that the several causes of action are not separately stated. Dutchess Special Term, Feb., 1855.-Demurrer to complaint. THE action is against Smith, as constable, and Marshall as surety on Smith's official bond. The complaint charges that Smith, on the 26th of February, 1854, received from the plaintiff an execution, issued on a justice's judgment in favor of the plaintiff, against one Wandall, for $91. That the defendant, Smith, took, by virtue of the execution, sufficient goods and chattels of the defendant in the execution to satisfy the same. It then charges that Smith has not returned the execution, though a sufficient time has elapsed, but keeps and detains the same, together with the money he has received thereon; and, by reason of such neglect, plaintiff has sustained damage to the amount of $91 and interest. The complaint then states the election of Smith-the execution by him and Marshall of the bond required by the statute, setting out a copy, and concludes, Therefore the plaintiff claims a judgment against the defendants for $91 and interest &c. Moore agt. Smith and Marshall. The defendants demur to the complaint, "on the ground tha several causes of action have been improperly united therein." JOHN THOMPSON, for plaintiff. C. FROST, for defendants. DEAN, Justice. The taking of sufficient goods of the defendant, on the execution, to satisfy the same, is in itself a satisfaction thereof, and would make the constable liable to the plaintiff in the execution; the neglect to return the execution according to its requirement, will subject the constable to an action for such neglect; and the withholding of the money collected on an execution, after the return day thereof, is also a cause of action against a constable. It was my impression, on the argument, on my recollection of the statute, (2 R. S. 253, § 159,) that for the neglect to return the execution, the constable only was liable, and not the surety; and therefore that there had been an improper joinder of causes of action. But, on examination, I find it has been decided (Sloan and others agt. Case, 10 Wend. 370) that the sureties are liable for the mere neglect to return the execution. Admitting, therefore, that there are three distinct causes of action in this complaintand there certainly are allegations in reference to three-are they such actions as may not be joined in the same complaint? I think not. They affect all the parties to the action; they require the same place of trial, and they all arise out of transactions connected with the same subject of action, viz., the liability of the constable to the plaintiff on the execution delivered to him. I think, therefore, that these causes of action, separately stated, might be united in the same complaint. They are not, however, separately stated; and it is doubtful whether the plaintiff's attorney intended to state more than a single cause of action, viz., the neglect to return the execution. He has, however, by alleging the levy on sufficient property to satisfy the execution, and the detention of the money received thereon, inserted allegations immaterial to substantiate his claim for a neglect to return the execution, and must be |