¶1The defendant opposes this motion, on the ground that no order was necessary to enable, the plaintiff to recover costs.
¶2This question has been discussed in several cases ; and it is now quite well settled that an application must be made to the court, and that the referee has no power to pass upon such question. (9 Barb., 388. 12 How. Pr., 301, 353. 14 id., 481. 23 id., 137. 4 Ab., N.S., 399.)
¶3I am aware that some cases are to be found, construing section 317 of the Code in such a manner as to render a motion necessary only in cases where it is sought to charge the costs upon the executor &c. personally; but more recent cases' are to the effect that the correct practice is to move for an order, in cases situated like this one. And following these cases, it must be considered that the plaintiff has followed the correct practice ; and his motion must be granted. (Howe v. Lloyd, 2 Lans., 335. Pish v. Crane, 9 Ab., N.S., 252.)
¶4This motion is therefore granted; but as the question has recently been opeh to- discussion, no costs of motion are allowed.'
¶5Ordered accordingly.
¶6Hardin, J.]