Danenhover v. March

—The plaintiffs in this case had no cause of action. This is confessed upon the record by their voluntary discontinuance upon payment of costs. These they have offered and consented to pay. The defendants ask, in addition, an allowance, and claim that it is a case within the clause of section 308 of the Code, which provides that an allowance may be made in any case where the prosecution has been unreasonably conducted. Webster defines “unreasonable” to mean claiming or insisting upon more than is fit. The plaintiffs concede that they have claimed what they were not entitled to. Such prosecution, was, therefore, “ unreasonable.” I concur with the Superior Court in Moore v. Westervelt (1 Code, R. N. S., 131), that this clause is not to receive a narrow and literal construction, and that these words apply to every suit which is groundless in its origin and vexatious in its purpose. Since every suit which is unreasonable and unfair in its commencement must be so in every subsequent step of its progress, unless it is at once abandoned, it is a prosecution unreasonably and unfairly conducted.

There must be an allowance in this case of $75.