In re Moss

The statute provides that the costs and expenses of foreclosing any mortgage by advertisement, shall be taxed by some officer authorized to tax costs in the Supreme Court, upon the requisition of any party liable to pay the same, and upon such party paying the expense thereof (2 R. S. 652).

I think Dennis Moss is in a situation to require such taxation. He claims the surplus as one of the heirs at law of Thomas Moss, the mortgagor, and he has been recognised as such claimant by being made a defendant in the action of interpleader. In as much as the costs are to be paid out of his money, he is, within a reasonable construction of the statute, a party liable to pay them.

The statute clearly contemplates a taxation where the party can be heard, and not an ex parte taxation. It is certainly proper and fair that the party requiring the taxation, should have an opportunity of contesting it. Notice of the taxation ought therefore to have been'given to him.

There must be a retaxation before a proper officer, on four days notice, served on Dennis Moss or on Chas. L. Austin, Esq. as his attorney.

Neither party is to have costs of this motion.