Phillips v. Bennett

The question for decision is simply a question of costs upon an appeal taken by the administrator from the decision of the commissioner upon an estate represented insolvent. The sum recovered upon the appeal by the creditor was less than the amount allowed him by the commissioner. Both parties moved to be allowed the costs arising upon the appeal.

The act regulating appeals from commissioners, (chapter 163 of the Revised Statutes,) makes no express provision in regard to costs in a case like the present. The 7th section provides that “ the administrator shall recover costs, if the creditor fail to enter his action, upon filing a complaint, or if the creditor appealing fail to recover more than was allowed by the commissioner. If the appeal was taken by the administrator, the creditor shall be allowed his costs if the amount allowed him by the commissioner is not reduced.” Those are the only provisions of the act relating to costs. It will be seen, then, that there is no express provision touching the costs, where, upon an appeal taken by an administrator, the amount allowed the creditor by the commissioner is reduced. The question is, what is the true *497rule applicable to the case, where there is no express provision upon the subject ? Both parties claim to be entitled to-costs. We think, however, that it is entirely clear that the creditor is not entitled to costs in such a case. He is not, as we have seen, by any express provision of the act referred to; nor is he, in any view, to be regarded as the prevailing party. It is contended, however, that the creditor may be regarded as having recovered the same amount as was allowed by the commissioner, the reduction being only by reason of an error in the computation of interest due to him. But this view is not a satisfactory one. There was an error, it is true, in regard to the interest, and consequently in regard to the amount due to the creditor, and upon the appeal the error has been corrected, and the sum found due has been reduced. Now this was an error of substance. It was in regard to a claim, too, that was made by the creditor, for the commissioner allowed precisely what was claimed. It is evident, also, that the error arose from an erroneous view of the rules of law governing questions of interest. It formed, then, a proper and just ground of appeal. Indeed, it was the only method by which the administrator could protect the rights of those whom he represented. And we may here remark, that the offer to remit the whole interest allowed by the commissioner, can have no proper bearing, as affecting the question j^efore us. It was, at most, a proposition for a compromise, not accepted. It was a proposition, in substance, to remit the interest, provided the administrator would no further object to the allowance of the principal sum claimed by the creditor. .The administrator did not accept the offer, and was not bound to do so. He had a right to contest the whole claim and abide the consequences of the general result. It was his duty to pursue that course if he had a conscientious and reasonable belief that the claim was unjust. And there is evidence before us that he might have well entertained that belief. The finding of the commissioner, to whom the claim was committed after *498the appeal, was in accordance with that view. It is, then, to be regarded as a case in which the claim of the creditor was reduced upon an appeal properly taken, and fully justified by the intermediate proceedings and the final result. It was an appeal for substantial cause. The creditor not appearing to be entitled to costs, the remaining question is, whether the administrator is entitled to recover his costs of the appeal.

It was decided in Drury v. Leland, 2 N. H. Rep. 409, that if a creditor recover upon an appeal taken by an administrator, from the decision of a commissioner upon an insolvent estate, a less sum than was allowed him by the commissioner, the administrator is entitled to costs. But it is said that the statute then in force, and constituting the foundation of that decision, differs from the act at present in force, and furnishing the rule for the decision of this cause. It will be proper to see whether the acts referred to be distinguishable from, or be, in substance, in agreement with each other. We have already given a recital of the provisions of the act now in'force. The act which furnished the rule for the decision in Drury v. Leland, was passed February 11, 1791, (1 N. H. Laws 220-21,) and, according to the citation in that case, it provided “ that when a creditor appeals from the decision of the commissioner, if something, but not more than the commissioners allowed, is given to the creditor by the judgment of this court, costs shall not be taxed for the creditor, but may be taxed for the executor or administrator; and that when an executor or administrator appeals from the decision of the commissioners, if the same, or as much as the commissioners allowed is allowed by the judgment of the court, the creditor shall have his full costs.” It will be perceived that there is no express provision in the last mentioned act, respecting the costs, where, upon appeal by an administrator or executor, from the decision of a commissioner, the sum allowed by the commissioner is reduced. Nor is there any express provision as to *499the costs of the appeal, where, upon the appeal of a creditor, he shall recover a larger sura than was allowed him by the commissioner. Those cases are left alike in both acts to be governed by general principles of law, and general rules of practice adopted by courts, or by statutes, general in their operation, upon the subject of costs. In the particular under consideration, the two statutes are precisely similar. Neither has any express provision touching the question. In Drury v. Deland, Chief Justice Richardson, after reciting the provisions of the act of February 11,1791, before mentioned, remarked: “ These provisions we consider as placed in the statute by way of example, to show who was intended to be considered as the prevailing party, and entitled to costs. And we entertain no doubt that where the creditor appeals, and recovers more than the commissioner allowed him, he must be considered as the prevailing party, and entitled to costs ; and where the executor or administrator appeals, if the creditor recovers less than the commissioner allowed, the administrator must be considered as the prevailing party, and entitled to costs.”

We consider the decision as being an authority directly in point, and applicable to the present case, and in favor of the allowance of the costs claimed by the administrator. And we see no reason to doubt the correctness of the decision. It seems to us to rest on sound general principles, long since adopted and in general practice. It was a general rule of law, resulting from long practice in this State, to give costs to' the prevailing party. The rule had its origin in practice, and not in any positive legislative enactment. Barron v. Ashley, 4 N. H. Rep. 279. Such is now the general rule, by the provisions of the statute. Rev. Stat. ch. 191, § 1.

We are of the opinion that the administrator in this case is to be regarded as the prevailing party, and that accordingly, as such, by the well settled' general rule of practice, as *500well as the express provisions of the Revised Statutes, he is entitled to costs.

Judgment for the appellant for costs.