Fisher v. Hall

I have no doubt but that the defendants are entitled to their costs of both suits. The plaintiffs ■claim title to lot 42, as grantees through several grants and the devise under the will of Henry Fisher; and ask, by their bill ■of revivor and supplement, the same relief as was claimed by Fisher under the original bill. I understand the rule in equity to be, that in a bill of revivor and supplement the plaintiff must pay the costs from the beginning. If the interest of a party is undetermined and transferred to another, the relief is obtained by supplemental bill, and the new party comes before the court In the same plight and condition as the original complainant. He is bound by his acts, and may be subject to the costs from the commencement of the proceedings in the original suit.

So a purchaser, pendente lite, on filing a supplemental bill, is ■liable to all the costs from the filing the original bill.

Suppose, says Hoffman, an estate has been in controversy in this court for twenty years, and during suit the claim in controversy is purchased; the purchaser, on filing supplemental bill, ■comes into court, pro bono et malo. He shall be liable to all ■costs from beginning to end. (1 Hoff. Pr. 401; see Atk. 88, 89; 11 Paige, 221; 1 Barb. Ch. Pr. 585; 2 Paige, 459; 11 J. R. 490.) At law the party in interest, though not :a party on the record, is liable to pay the costs. (7 Wend. 497; 20 Wend. 622.) I shall accordingly allow the defendants the costs in both suits. Plaintiffs might perhaps have filed a new bill, and thus avoided the costs of the first suit, but *261they have chosen a different course, and must abide by its consequences. Several items in the original bill are objected to, and I shall proceed to notice them in their order. The copies of affidavits, charged as engrossing at fourteen cents per folio, at No. 23, were, it is true, not necessary on motion, but they were to be filed on the decision of the motion, and I think fees for engrossing are allowable. Copy to keep, also charged at seven cents, at No. 25, is also allowable if actually made, and the solicitor swears in this case it was. The items marked No. 1, 2, and 3, on the 2d page of the bill, are objected to on the ground that the motion was made on the original papers, and that there was no necessity for making copies. The solicitor swears that they were actually made. The chancellor decided, in Mann agt. Rice, (3 Barb. Ch. R. 42, 44,) that the charge for a copy of answer to be used on a motion of this kind was not allowablej for the extra copy of the answer, which is always allowed to the party to keep, should be used in all cases where it is necessary to exhibit a copy to the court, upon the making or opposing of a motion. This remark does not apply, however, to the copy of the bill and injunction which were allowed, and which it was necessary the defendants should copy and furnish to the court on the motion. I shall therefore strike from the bill the amount charged for copies of answer and affidavits, and allow the two remaining items. There is no provision in the fee bill allowing for copy of opinion, and the fee of 50 cents charged for that item must be stricken out. The charge for certified copy of order dissolving injunction for master, is not allowable, as not necessary; but I rather think the charge is intended to be for copy order to examine Meacham, as no such charge, which would be proper, can elsewhere be found. I shall therefore allow it to stand.

The charges relative to the examination of Meacham I shall allow, as it appears the witness was examined under an order of the court, which was regular until it was set aside.

The item, No. 5, on the 3d page of the bill, is objected to, all but three copies, on the ground that there was no need of serving order on any but the grantees of Fisher. The so*262lioitor says the order directed a copy to be served on all the defendants, and swears the copies were all made and served. I shall therefore allow them. So of the items for affidavits, of service of the copies of order and the admission of the same on Mr. Pond, having all been actually made and done, are allowable ; and also of the items from No. 13 to 31, for order, and service of copies modifying injunction. The three last "items are also allowable. This disposes of the objections to the original bill, and I tax it, deducting $13,66, at $153,02.

As to the costs of the supplemental bill, the solicitor for plaintiffs objects to the two items of brief and solicitor and counsel fee on hearing, and swears that the cause was never on the calendar, or if it was, it was irregular and not noticed. These two items must therefore be stricken out; but the remaining items are allowable if the services were done, and the solicitor swears they were. The charges also are allowable. Defendants have a right to judgment of discontinuance, and to have their costs entered therein. The bill is therefore taxed in this case, deducting $15,00, at $43,93.