Frost v. Frost

The act to reduce the expense of foreclosing mortgages in the court of chancery, (Laws of 1840, p. 287,) applies only to cases in which the complainant can bring his cause to a hearing and obtain his decree of foreclosure and sale,- and for the payment of the whole amount claimed in his bill, without the necessity of filing a replication. And where an adult defendant puts in an answer setting up new matters by way of defence, or putting in issue any material allegations in the bill, so as to render it necessary for the complainant to establish such allegations by proof at the hearing, the provisions of the act of May, 1840, as to the amount of costs in foreclosure suits, do not apply. The complainant is also entitled to full costs, in such a case, although he is enabled to bring his cause to hearing upon bill' and answer, and to prove the matters put in issue, by the production of documentary evidence at such hearing; under the second clause of the 17th rule of this court. For the answer of the defendant denies a material matter set forth in the bill, within the intent and meaning of that act, whenever such matter is put in issue by the general traverse, or otherwise, so as to render it necessary to prove such matter upon the hearing of the cause. The taxing officer was therefore right in taxing extra costs against the defendant Bevans, under the decree which- had been made in this case.

1 think, however, he has made a mistake- in the principle upon *495which the costs should he taxed in such a case. Under such a decree it is impossible to separate the taxable items, so as to make two separate bills of costs each item of one of which bills shall be entirely separate and distinct from the items embraced in the other. The proper course, in such a case, is to ascertain the whole taxable costs of the complainant, in the same manner as if the defendant, against whom the extra costs are charged, was decreed to pay the whole costs of the suit; and then to ascertain the amount of costs which would have'been taxable, under the statute, if such defendant had suffered the bill to be taken as confessed against him for want of an answer. This last amount should then be taxed as the general costs of the cause, to be paid out of the proceeds of the mortgaged premises. And the residue of the first bill, after deducting that amount therefrom, should be taxed as the extra costs occasioned by the answer of the particular defendant whose answer caused such extra costs. In the first bill, the fees of the register, or clerk, for all his services, should be charged at the rate fixed by the general fee bill; which is the amount that the complainant’s solicitor is bound to pay to the state in such a case as this. But in the last bill, only the allowances, for the services of register or clerk, which are fixed by the act of May, 1840, and at the rate therein prescribed should be taxed. In the first bill, all the necessary disbursements in the suit should be charged; and in the other only those disbursements which would have been requisite if the answer had not been put in.' The costs must, therefore, be referred back to the taxing officer to be retaxed upon those principles; and the complainant’s solicitor must make out and serve a new bill accordingly.

The complainant was entitled to the solicitor’s and counsel fees for attending and arguing the cause at the term when the decree by default was obtained: as the cause was not again reached at that term. The case would have been otherwise if the cause had been reached and again heard at the same term. The solicitor swears he actually attended the court upon the hearing; and though he happened to be out at the moment the decree by default was obtained, he is still entitled to the allowance for attendance specified in the fee bill. As the counsel for *496the defendant did not know the solicitor, his affidavit that he did not see him in attendance is not sufficient to countervail the solicitor’s oath that the service was actually performed.

The allowance for six days’ attendance on the examination of witnesses was erroneous. The solicitor is only entitled to an allowance for the number of days he actually attends before the examiner. He cannot charge for his time in travelling to and from the residence of the examiner; nor for his attendance over the sabbath, when testimony cannot legally be taken, although he is obliged to remain from home during the sabbath, to continue the examination the next day. Where the cause is reached upon the calendar, and goes over the term at the request and for the particular accommodation of the counsel of the party who finally succeeds in the suit, such party is not entitled to charge his adversary with the costs of noticing the cause, nor with the other expenses of the term. But where the case is not reached on the calendar, or where it goes off for the mutual accommodation of both parties, these expenses are taxable. The execution against Bevans appears to be properly taxable, as prospective costs. But it must be deducted if the costs are paid upon taxation, or before execution is issued.

Neither party is to have costs as against the other upon this application, nor the extra costs of the relaxation.