Van Ness v. Cantine & Radcliff

The defendants who sued out this execution were wrong in supposing that the complainant was bound to pay the costs of their answer, in this stage of the cause, if she did not think proper to amend under the permission contained in the order of April, 1832. That was not an absolute order to pay the costs, but was merely a conditional grant of the application to amend. She was permitted to amend, according to the prayer of the petition, on condition that she should pay the costs of the answer already put in by these defendants, as well as the costs of opposing her application. And I cannot see that she has done any positive act which would make it equitable that she should pay the costs of that answer, if she elects to proceed in the suit without amendment. The costs of opposing the application for leave to amend, depend upon a different principle. As the petition would have been dismissed, with costs, if the counsel, on the hearing of that petition, had declined taking a conditional order; if the client afterwards declines a performance of the condition, she must pay the costs which would have been charged upon her, if she had declined it by her counsel in the first instance. But no execution can issue against the body or the property of a party in this court, except upon a decree of the court, or upon some positive order in the nature of a decree. It is therefore necessary for *57a party who is equitably entitled to such costs, to apply to the court for a positive order for the payment thereof, before he can take out an execution. Upon such an order, the statute has authorized the issuing of a precept to commit the party to prison, if he refuses to pay the amount which is thus ordered to be paid to the adverse party. But as the revised statutes have authorized this court to enforce the performance of a decree only, by an execution against the property of the party as on a common law judgment, it may be doubtful whether a fi. fa. can be issued upon a mere order for the payment of interlocutory costs. Here is an execution directing the sheriff to levy three several sums of money, amounting in all to $92,50, out of the property of the complainant. And yet, there is no order or decree upon the records of this court directing the payment of any part of either of those sums; and nothing which could authorize the issuing such an execution. As the whole of the proceedings on the part of these defendants, after the receipt of the notice of the abandonment of the order to amend "and the tender of the costs of opposing the first application, were irregular and unauthorized, this execution must be set aside with costs, to be paid by the defendants, in whose favor the same was sued out. The defendants are, however, to be permitted to set off against those costs, their costs of opposing the original application to amend. The complainant must also stipulate not to bring an action of trespass.