C. & C. H. Sigourney v. Waddle

The statute making the attorney of the plaintiff liable for the costs of the defendant, to an amount not exceeding $100, where he commences a suit in which the defendant is entitled to security, without filing the requisite bond, does not appear to extend to solicitors in chancery, in suits commenced here. (2 R. S. 621, § 7, 8.) A similar liability, however, is incurred by a solicitor, in this court, under the provisions of the 16th rule. But the extent of the liability of the solicitor, under that rule, to all the defendants, can never exceed one hundred dollars. If the defendants are not satisfied with that, they should apply, before they have incurred heavy expenses in defending the suit, and obtain an order that the complainants give security in the usual form. I am inclined to think, however, that the liability of the solicitor, under the 16th rule, ought not in any case to be extended to the costs of the appellant on an appeal. For by the statute and the rules of the court, the party appealing is, in all cases, required to give security for the respondent’s costs on the appeal, before the appeal can be perfected.

It was certainly erroneous to make it a part of the decree that the solicitor should be first charged with the costs of the defendant, to the extent of $100, and that the complainants should only be liable to execution for the residue. *383For the complainants themselves are primarily liable for the costs; and their solicitors should only be resorted to when the defendants are unable to collect their costs from the complainants. Nor should it in any case be made a part of the decree that the solicitor pay the costs, even where his client has no property within the reach of the process of the court. For the solicitor cannot properly be charged except by summary proceedings against him, to enforce his liability under the rule. But a decree having actually been made by the court below, against the solicitor for the payment of costs, and subjecting his property to execution for the whole amount of the $100 which he could in any event be made liable for under the rule, he should not have been subjected to the expense of opposing these applications, to charge him for the further costs arising out of the proceedings upon the appeal.

The motion on the part of each defendant must therefore be denied, with $12 costs, to be paid by such defendants respectively, to Watson the solicitor.