text:
    Hay vs. Warren and others.
    The wife who has not been divorced, or legally separated from her husband,cannot file a bill in her own name against a former committee of her husband, for an account of the property of the latter, and for the support of herself •and children out of such property; although the husband has abandoned her and left the state.
    February 16.
    The bill in this case was filed by the complainant, the wife of Á. Hay, against the surviving committee of her husband, and also against the -executors of Sv, Brown, deceased, who had also been one of such committee. It appeared by the bill that in May, 1825, a commission of lunacy had been issued against A. Hay, the. husband, by the equity court of the fourth circuit, upon which he was found a lunatic, and that a committee had been appointed, in the usual form, of his person and estate. About two years afterwards Hay made an application to discharge the committee, and to have his property restored to him, which was so far granted as to suspend the powers of the committee, and to require them to account before a master; upon which accounting a small balance was found due to Brown, one of the committee. The bill charged that Hay had been a confirmed and habitual drunkard, from the time of the institution of the proceedings in lunacy against him to the period of filing this bill, and that the proceedings to pass the accounts of the committee were entirely ex parte; Hay being incapable of understanding and protecting his rights in relation to his property and to the accounts. The complainant further charged, that the inventory and account of the committee were false and fraudulent, and that Brown, one of the committee, received a much larger amount of property than he accounted for before the master ; that the committee, as well as Hay, the husband of the complainant, had neglected to provide the necessary means for her support and the support of her children ; and that in 1834, the husband left his family without any means of support and went to Illinois, since which time he had not been heard of by the complainant. The bill prayed that Warren, the surviving committee, and the executors of Brown, might be decreed to pay to the complainant, out of the property and effects of her husband, a reasonable sum for the support of herself and her children, and that they might be decreed to account for such property and effects; and for general relief.
    To this bill the defendants demurred, upon the ground that the complainant showed no legal or equitable right to open the accounts between her husband and the committee ; that the passing of the accounts before the master was conclusive upon the rights of the parties; that the lapse of time and the death of one of the committee was a bar to the relief sought; and that the complainant showed no right to sustain her bill, nor had she stated such a case as to entitle her to any relief against the defendants or either of them.

      B. F. Agan, for complainant.
    The complainant is legally entitled to a support and maintenance out of the property of her husband in the hands of the committee. The bill is filed to obtain this support. It is not necessary that the complainant should have appeared by prochein ami. An appearance by prochein ami is required only in suits instituted for the recovery of a separate estate. (Cooper’s Eq. 204. 6 John. Ch. Rep. 180.) The complainant has a right to have the accounts of the committee opened. Fraud and corruption always constitute a good ground for opening an account at any time, although the same may have been settled by the parties. (1 John. Ch. Rep. 506. 1 McCord’s Ch. 161. 10 Price’s Rep. 62. 2 Atkins, 113, 119. 3 Brown’s Ch. Cas. 633, 646. 2 Id. 280, 305. 2 Cooper’s Eq. Pl. 279. 9 Pick. 212.) An averment of fraud is not necessary. If it appear from the face of the bill it is sufficient. (1 Maddock’s Ch. 81, 82. 11 Coke, 98. 1 John. Ch. R. 550.) Suspicious circumstances creating an inference of fraud, is a cause for opening accounts. The bill alleges that the inventory, and the account of the property received by the committee, are false and fraudulent. This court has jurisdiction in all cases of alimony, and will decree an investigation of accounts notwithstanding any lapse of time, where there is fraud or undue influence, or an ex parte settlement has been had. (4 Dessaus. 79. 1 McCord’s Ch. 205. Forrester, 63. 3 Brown’s Ch. Cas. 633. Douglass, 655.) The equity of the case is with the complainant, the committee having corruptly and fraudulently converted the trust estate to their own use,

      C. Stevens, for the defendants.
    The passing of the accounts of the committee of Hay, was and is final and conclusive upon the parties to that accounting, and is a full and complete bar to all the relief now sought in this court by the complainant. (Blunt v. Darrach, 4 Wash. C. C. R. 657. Davoue v. Fanning, 4 John. Ch. R. 199.) Where a party seeks to open a stated and settled account, if he gets up the account in his bill, he is bound to point out specifically wherein the account is erroneous, or the defendant may demur. A general charge in the bill that the account is false and fraudulent, is not sufficient. (Story’s Eq. Pl. 616, sec. 800. Bullock v. Boyd, 2 Edw. V. C. R. 293. Wilde v. Jenkins et al. 4 Paige’s Rep. 481.) The accounts of a committee or other person will not be opened, where they have been duly passed and settled before a master, upon a mere allegation without proof, that the accounts thus passed and settled are false and fraudulent; especially after the lapse of fourteen years, and the death of the principal accounting party. (Kane v. Bloodgood, 7 John. Ch. R. 90. Rayner v. Pearsall, 3 Id. 578 to 586. Start v. Mellish, 2 Atk. R. 610. Jeremy’s Eq. 546, 7, ed. of 1830. Bertine v. Varian, 1 Edw. Ch. R. 343, Chalmers v. Bradley, 1 Jac. & Walk. 63. Kingsland v. Roberts, 2 Paige, 193. Moores v. White, 6 John. Ch. R, 360.) The defendants can avail themselves of this objection on demurrer to the bill. (Wisner v. Barrett, 4 Wash,
      C. C. R. 631. Hoare v. Peck, 6 Sim. R. 51.) The lapse of lime in the case now before the court, would have been a good bar to the relief asked for by the complainant inker bill, if the defendants had pleaded it. And where the facts, which constitute a good plea to the relief, appear upon the face of the bill, the defendants may demur. (Story’s Eq. Pl. 353, sec. 449. Milford’s Pl. 216, 277.) The bill shows no right, legal or equitable,in the complainant, to open the accounts between the committee and Hay, the husband of the complainant. The defendants named in the bill are not the trustees of the complainant, and are not in any manner, either at law or in equity, liable to account to her. Their liability, if they are liable at all, is to Hay, the husband of the complainant. It appears by the bill that the husband is a feme covert. If she had any right, she cannot enforce it in her own name. She should have sued by her next friend.
   The Chancellor.

The demurrer in this case is well taken ; as this court has ho jurisdiction or power to call the defendants to account for the property of Hay, upon a bill filed by his wife, to which he is not a party. In the case of Haviland v. Bloom and Myers, (6 John. Ch. Rep. 178,) the wife had obtained a decree of divorce a mensa, et thoro, and a decree that she should hold and enjoy her paternal inheritance for the support of herself and her children. The suit instituted against the defendants in that case by the wife, by her next friend, was therefore a suit to protect her own separate property, which had been made so by the decree against her husband ; as to which property she had a right to bring a suit in her own name, without the consent of her husband.

There is not sufficient stated in this bill to enable me to form an opinion whether the committee were absolutely discharged from their trust, and the lunatic so far restored to his former rights over the property as to make the accounting before the master final and conclusive ; and to divest the equity court of all further jurisdiction over the person or estate of the lunatic without the necessity of taking out a new commission where he now resides. It is sufficient to dispose of the question now before me, to say that this bill is defective both in form and substance. Although it is not stated as one of the grounds of demurrer that the bill is filed by a feme covert in her own name, that objection might have been urged ore tenus, if the bill was not otherwise defective in being filed by one who is not authorized to call the defendants to account by bill, in any form, to which her husband is not a party.

The demurrer must therefore be allowed, and the bill dismissed.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Wendell vs. Lewis and others.
    Upon the taxation of costs, where the solicitor makes the usual affidavit, as required by the 130th rule, if the adverse party wishes to have some of the items charged in the bill disallowed upon the ground that the services have not actually been performed, he must produce his affidavits, or other evidence in opposition to such items, before the taxing officer on the taxa. tion; and where he neglects to do so, he will not be allowed to use such affidavits, or evidence, before the court, upon a motion for re-iaxation, without showing a sufficient excuse for not producing the same before the taxing officer.
    The usual affidavit, annexed to the bill of costs, is sufficient evidence of the performance of the services to make it the duty of the taxing officer to allow the charges, if in other respects properly taxable against the adverse party, unless there is evidence produced before him sufficient to show that the affidavit annexed to the bill is not correct, and that the services were not performed.
    Where, upon the taxation of costs, items are charged, and allowed by the taxing officer, when the services thus charged have not been performed, such taxation will not protect the solicitor from liability for the treble damages, given by the statute, for receiving payment for services which had not been actually rendered.
    The fact that one of several defendants, who have a common interest, lives in a different state from the others at the time of putting in the answer, is a sufficient excuse for putting in a separate answer from the other defendants, to authorize an allowance for such separate answer on taxation: although such defendant resided in the same state with the others at the time the subpeena to appear and answer was served.
    If the solicitor actually attends the hearing of the cause, while the same is under argument, he is entitled to the solicitor’s fee for attendance, although he takes no part in the argument, and is only present a part of the time.
    Charges for stipulations and orders allowing to the defendants further time to put in their answers, &e., are not taxable against the complainant. But they are taxable as between the solicitor and his client, where the further time is allowed for the benefit of the client, and not for the convenience of the solicitor merely.
    Where exceptions to an answer for insufficiency are allowed, and the defendant puts in a further answer, and succeeds in his defence, he is only entitled to tax, against the complainant, for so many folios of the further answer as would have been necessary to have rendered the original answer perfect; and he is not entitled to charge the adverse party with the expense of perusing, amending, filing, swearing to, or serving the further answer.
    The solicitor is not entitled to an allowance for a copy of the order to produce witnesses, and also for a notice of such order ; as it is sufficient to serve a notice of the order merely. Nor is lie entitled to charge for two lists of the witnesses to be examined, one for the examiner, and another for the solicitor of the adverse party; as only one list is required by the rule of the court.
    It is no objection to the allowance of an abbreviation of pleadings, for the use of counsel, that the solicitor made full copies of the pleadings for the counsel instead of abbreviating them. It is only in abbreviations made for the use of the court, that the rule restricts the solicitor to one sixth of the number of folios contained in the pleadings abbreviated.
    The solicitor is only entitled to charge for two copies af his bill of costs : one to bo served with the notice of taxation, and another to be taxed and filed. And a charge for a draft of his bill of costs is not taxable.
    Where several purchasers of distinct portions of the premises, from a party who is charged with fraud as to the whole promises, arc made co-dcfendants, for the purpose of reaching the portions of the premises in their hands respcctivcly, and they put in separate answers, having no connection with each other, merely setting up the defence of bona fide purchasers without notice as to their several portions of the premises, costs of putting in such separate answers may be allowed, although the defendants all appeared by the same solicitor.
    If several defendants appear by the same solicitor, and partially sever in their defences, and one of them dies before a final decree in the cause, and the suit is not revived against his representatives, the solicitor cannot tax against the complainant the costs of any separate proceedings in behalf of the deceased defendant which were had previous to his death.
    Where the same solicitor appears for different defendants in the same suit, he cannot charge a separate or distinct bill of costs for each defendant, nor charge more than once for services which were performed for all the defendants jointly, or were performed only once ; although such defendants sever in their defences.
    If the complainant, after the original defendants have appeared and put in their answers, amends his bill and brings new defendants before the court, who appear by the same solicitor as the original defendants, and put in their answers, the solicitor is entitled to charge a separate retaining fee for new defendants, and to tax the same in a separate bill; together with the costs of the appearance, and charges for such other services as were performed for the new defendants only, in which the original defendants had no common interest with them.
    An appeal to the chancellor, from a decree of a vice chancellor, is in the nature of a new suit, and tho costs of sucli appeal may be taxed in a separate and distinct bill from the costs in the court below. But where several parlies appeal jointly, only one retaining fee and one set of charges can be allowed to their solicitor on the appeal.
    Costs of a special application to the court for leave to examine a defendant as a witness in behalf of his co-dofcndants, arc not taxable against the adverse party, as costs in the causo; where the applicants had neglected to enter a common order for the examination of such defendant as a witness, within the time limited by the 73d rule.
    In no case can costs which have been rendered necessary by the negligence of a party, or of his solicitor, be taxed as costs in the cause, against the adverse party, who was not in fault in relation thereto.
    February 16.
    This was an application on the part of the complainant for a retaxation of the costs of the defendants. The bill was originally filed against Juliet Lewis and three others, (all of whom claimed an interest in the property of the late Stewart Lewis, which had been purchased by the complainant upon execution,) to set aside certain judgments and conveyances, under which the defendants claimed title to the property, as fraudulent. Three of the defendants put in a joint answer ; and one of them being in Philadelphia at the time her answer was put in, put the same in separately. The complainant’s solicitor insisted that she should have answered jointly with the others, as she was at Albany, where the other defendants resided, when the subpoena was served on her. The taxing officer, however, allowed for both answers. Previous to the putting in of the answers, the time for putting the same in was several times extended for the accommodation of the defendants and their solicitor; and the taxing officer allowed to the defendants the costs of procuring such extensions of the time, as proper charges against the complainant. The answers of these defendants were excepted to for insufficiency, which exceptions were sustained ; and the taxing officer allowed full costs for putting in the further answers.

      After the first answer, the complainant amended his bill and Corning & Norton, J. Austin, R. Blackall, J. Mix, C. Barker, S. Paddock, O. Davison, F. Plate, F. H. Crosby, and the Trustees of the Reformed Protestant Methodist Church in Albany, who had severally become purchasers of separate and distinct portions of the premises in controversy, under Juliet Lewis and her sisters, and E. Rogers and wife, who were entitled to a legacy under the will of F. Lewis, charged on the premises, were made parties defendants in the suit. These several defendants all appeared by the same solicitor who had been employed by the original defendants in the cause ; and they put in separate answers, denying all knowledge or information as'to the alleged frauds stated in the bill, and setting up their several claims as bona fide purchasers, &c. Crosby having died after his answer was put in and before decree, the cause was not revived against his representatives ; but an order was obtained that the suit proceed against the survivors. The vice chancellor made a decree against all the defendants, setting aside the judgments and conveyances under which the defendants claimed, on the ground of fraud ; directing a reference, and reserving the question of costs. From that decree all the defendants jointly appealed to the chancellor ; who affirmed the decree of the vice chancellor as to the principal part of the subject in controversy. He reversed it, however, as to some of the defendants who had purchased portions of the property, and paid their purchase money without notice of the fraud; but made a decree over against Juliet Lewis and her sisters, for the proceeds of such sales, and decreed that the complainant was entitled to the unpaid purchase money upon the sales to other defendants, whose purchase money had not been paid. From this decree the four original defendants appealed to the court for the correction of errors, so far as the decree was adverse to the rights claimed by them. And the complainant appealed from so much of the decree as was adverse to his claims. That court reversed all of the decree of the vice chancellor, and so much of the chancellor’s decree as affirmed any part of such original decree, and affirmed so much of the chancellor’s decree as reversed a part of the decree of the vice chancellor. And that court further ordered and decreed that the complainant’s bill be dismissed with the costs to the defendants in the court of chancery. The defendants’ solicitor, in addition to his joint bill of costs againts the complainant, in favor of the four original defendants, in the proceedings before the vice chancellor and upon the appeal to the chancellor, made out and claimed eleven other separate and distinct bills of costs in favor of the several defendants who were made parties by the amendment of the original bill of complaint, including a bill of costs in favor of Crosby, who died before decree. In each of these bills he charged eight dollars as a retaining fee for solicitor and counsel. And in each, except the last, he charged twenty-six dollars for solicitors and counsel fees on the original argument, and on the argument upon the appeal to the chancellor; and $5,37-J, for the expenses of making and taxing the bills respectively; including in each case, a charge of $1 for drawing the bill of costs, in addition to the two copies thereof, for the complainant’s solicitor and to file. All these charges were allowed by the taxing officer; together with the usual charges for putting in a separate answer by each defendant.
    Previous to the hearing, the original defendants applied for leave to examine Webster, a co-defendant, who after-wards died before the hearing, as a witness in their favor ; and the costs of that application were also allowed by the taxing officer. Some other charges of minor importance, not legally taxable against the complainant, were also allowed by the taxing officer. And he allowed some others which were taxable if the services were actually performed ; but which services the complainant’s solicitor, in an affidavit used for the first time upon this application for a re-taxation, stated were not performed by the defendants’ solicitor.

      L. H. Palmer, for the complainant.

      S. Stevens, for the defendants.
   The Chancellor.

The question as to the right of the defendants’ solicitor to be allowed for his attendance on the hearing and upon the examination of witnesses, &c. cannot be settled on this application. This is an application to review the decision of the taxing officer upon the ground that he has decided erroneously ; and not a motion for a retaxation upon the ground of a discovery of new evidence in opposition to the claim of the solicitor for the services charged. The solicitor having charged for these services in his bill, and made the usual affidavit, as required by the 130th rule, that the services were actually rendered, if the fact was o then wise, the complainant should have produced his affidavits, or other evidence, in opposition to those charges before the taxing officer on the taxation ; or he must at least show some good reason why it was not then done. Where a solicitor charges for services in his bill of costs, and swears that the services were performed, it is the duty of the taxing officer to allow for those charges, if in other respects they are properly taxable against the adverse party, unless there is a preponderance of evidence against the alleged performance of the services. The adverse party is not without remedy in such a case if he can afterwards show that the charge was improperly made j for the taxation will not protect the solicitor from liability for the treble damages given by statute for receiving pay for services which were never rendered. (2 R. S. 651, § 6, 7.)

In this case, I think the affidavit of the complainant’s solicitor, even if it had been produced before the taxing officer, would not have been sufficient to prevent the allowance of an attendance fee upon the hearing of the cause both before the vice chancellor and on the appeal. If the solicitor actually attends upon the hearing of the cause it is not absolutely necessary that he should hear the whole argument, or take any part therein. The object of his attendance, as stated by Chancellor Kent in his note to this item of the fee bill of April, 1818, shows that a different construction would be erroneous. (Blake’s Chan. App. 119.)

I think the allowance for a separate answer for the widow of Stewart Lewis, who was in Philadelphia when the •answer was put in, was properly allowed. Even if it had been shown before the taxing officer that she was here at the service of the subpoena, it would have been unreasonable to have required her to make a journey from Philadelphia to Albany for the sole purpose of joining in an answer with the other three defendants who put in their answer together. It is evident this separate answer was not put in for the purpose of increasing the bill of costs of the solicitor ; and the rights of Mrs. Lewis were to a certain extent different from those of her sisters-in-law.

The expenses of the different stipulations and the order giving to the defendants further time to put in their answers, &c., were not properly taxable against the adverse party. These applications are usually made for the convenience of the defendant’s solicitor, and are not chargeable against the adverse party. By the practice of the English court of chancery, the costs of an application for further time to put in an answer, beyond that which is fixed by the rules of the court, are not allowed on taxation between party and party; but they are taxable as between the solicitor and his own client, where the further time was allowed for the benefit of the client, and not for the convenience of the solicitor merely.

The taxing officer was also wrong in allowing the full costs of putting in the further answers after the exceptions to the original answers for insufficiency had been sustained. No part of the costs of the argument of those exceptions should have been taxed against the complainant; and only so many folios of the further answers as would have been sufficient to have rendered the original answers perfect, .should have been allowed. Even where the complainant amends his bill upon the allowance of exceptions for insufficiency, the defendant is not allowed to tax against him the charges for perusing, amending, filing, swearing to and serving the answer to the exceptions and amendments ; as the expense of putting in a further answer to the exceptions is not increased by the amendments, except as to the additional folios in such further answer. (Stafford v. Bryan, 2 Paige’s Rep. 51.)

The charges for engrossing order to produce witnesses, for a copy of the order, in addition to the notice that it had been entered, and the copy of a case made by the defendant for the hearing, were not taxable against the complainant, and should have been disallowed. The taxing officer should not have allowed for two lists of the defendant’s witnesses for the complainant and the examiner. The 83d rule requires that a list of the witnesses shall be delivered either to the adverse party, or to the officer, before the examination commences. But a list for each is not required. The object of allowing the list to be delivered to the examiner, instead of the adverse party, was to provide for the case of the commencement of an examination when the adverse party, or his solicitor, was not present. Where the list of the witnesses has been delivered to the solicitor of the adverse party, therefore, either before or at the commencement of the examination, it is not necessary to deliver a copy of such list to the examiner.

I see no objection to the allowance made by the taxing officer for the abbreviations of pleadings, &c. for the use of counsel. The affidavit of the solicitor indeed showed that he made copies for the use of counsel instead of abbreviations. But as there is nothing in the rule declaring the extent of an abbreviation of a pleading for counsel, the adverse party cannot object that the abbreviation was so much longer than usual as to amount to a full copy ; as the expense thereof is the same. It is only in the abbreviations which are made for the use of the court that the rule restricts the solicitor to one-sixth of the number of folios contained in the original pleadings abbreviated. The court has repeatedly decided that under the present fee bill, the solicitor was not authorized to charge for the draft of his bill of costs. (See Stafford v. Bryan, 2 Paige, 52.) He was only entitled to charge for a copy of that bill delivered to the adverse party with the notice of taxation, and for another copy to be taxed and filed.

All the other defendants who appeared by the same solicitor, and who were brought before the court by the amendments to the bill, had separate and distinct interests from each other ; and as it became necessary for each purchaser to set up and swear to his own defence, that as to his purchase it was made without any notice of the alleged fraud in the original parties under whom he claimed his particular lot, it would have been unreasonable to have required them all to join in an answer ; when none of them probably had any knowledge or information as to the bona tides of the purchase of their co-defendants. These answers were all very short, and if the defendants had attempted to answer jointly and severally the aggregate numbers of folios would probably have been increased thereby ; for in relation to each parcel of land the purchaser thereof would have been obliged to state the particulars of his purchase, and the bona tides thereof, on his own personal knowledge, and his co-defendants must have stated the same thing upon their" information and belief merely; or if they had no information on the subject, it would have been necessary for them to say so, in some way which would enable them to swear to such joint and several answer. The putting in of these sepearate answers by defendants whose defences were thus several and distinct in their natures, was for these reasons not improper, even if not absolutely necessary ; and could not have been intended to swell the costs of the solicitor who drew the answers. It was therefore proper to allow the solicitor, upon taxation, for the ordinary expenses of each separate answer ; except as to the answer of the defendant who died before the cause was brought to a hearing. The suit never having been revived against the representatives of that defendant, and the solicitor having no claim upon any of the parties in whose favor the decree for costs was made for the expenses of putting in that answer, those expenses cannot be taxed as a part of their costs in the suit.

The remaining question, and the one which is the most important to the defendant’s solicitor, as well as to the profession generally, is whether a solicitor who is employed by-several defendants to defend a suit, is entitled to several bills of costs on a taxation between party and party, or even as between solicitor and clients, for retaining fees and other charges which are common to all the defendants for whom he appears..

Pursuant to a provision contained in the revised statutes, making it the duty of the chancellor to revise the rules periodically, with a view, among other things, to the diminution of all unnecessary costs, (2 R. S. 175, § 46,) the 130th rule, as adopted and promulgated on the day the revised statutes went into effect, directs, among other things, that where the same solictor appears for two or more defendants, or different solicitors who are partners appear for several defendants, and separate answers are put in or other proceedings had, by or for the defendants separately, the taxing officer, in the taxation of costs, either as between party and party or between solicitor and client, shall consider whether such separate answers or other separate proceedings were necessary or proper ; and if in his opinion any part of the costs occasioned thereby was unnecessarily or improperly incurred, the same shall be disallowed. A similar provision, in substance, is contained in one of the new orders of the English court of chancery. And the same provision, so enlarged as to reach the case of mere formal parties who appeared by separate solicitors, where their interest in the suit, if any, was joint and not several, was subsequently adopted by the court of chancery in Ireland, in the revision of its rules in November, 1834. (See Cook’s Ord. in Ch. 16, Rule 27; Smith’s Orders, 321, Rule 199.) In making this provision, as to the costs of separate proceedings by the same solicitor for different defendants, it was not deemed necessary to prohibit the allowance of distinct bills of costs for each defendant, or of double or treble charges for the same services performed for all of the defendants jointly ; as it was supposed to be the settled practice of this and of all other courts not to allow separate bills to be made out, or duplicate charges to be taxed, for services which were performed but once.

In the case of Morton’s ex’rs v. Croghan’s terretenants, (1 Cowen’s Rep. 233,) where several defendants appeared by the same attorney and put in pleas to protect their rights, to different portions of the premises against which the plaintiffs sought to enforce their judgments, the supreme court decided that only one retaining fee was taxable against the plaintiffs, in favor of the defendants who were entitled to costs upon the discontinuance of the suit against them. And the principle of that decision has even been extended, by the supreme court, to the costs of the attorney of several defendants in separate suits relating to the same matter, where one service only was performed for the joint or common benefit of all the defendants. (See Jackson v. Garnsey, 3 Cowen’s Rep. 385.) The supreme court in that case directed the whole costs in all of the suits to be taxed in one bill; and they allowed but one set of charges for the services of attorney and" counsel on the motion in all of the causes jointly. In the recent case of Jones v. Conyngham and others, in the court of queen’s bench in Ireland, (1 Jebb & Syme’s Rep. 360,) where the same attorney had appeared for several defendants in a libel suit, it was declared to be the uniform practice of the court to allow but one fee to the attorney in such cases. And in the case of Tarbuck v. Woodcock and another, decided at the rolls on the 3d of December last, (21 Legal Obs. 110,) Lord Langdale refused to allow costs against the complainant for two separate pleas, put in by the same solicitor for different defendants for whom he appeared. Only one bill of costs was therefore permitted to be taxed in favor of both defendants. In Starving v. Cousins, (1 Gale’s Rep. 159,) where the attorney appeared for several defendants, in an action of tort, and some of them succeeded in their defence and the others did not, the court of exchequer held that prima facie the attorney was employed by all the defendants jointly; and if so, those who had succeeded were only entitled to an aliquot portion of the costs of the defence. And in Gambrel v. The Earl of Falmouth, (5 Barn. & Adol. Rep. 403,) the court of king’s bench applied the same principle of taxation to two defendants who appeared by different attornies who were copartners. (See also Bartholomew v. Stevens & Edwards, 5 Mees. & Weis. Rep. 386; Griffiths v. Kynaston and others, 2 Tyrwh. Rep. 757; Griffith v. Jones, 1 Gale’s Rep. 254.)

In the present case, the solicitor who was retained by the four original defendants was entitled to his full costs, for so much of the defence as related to them, up to the time of his retainer by the new defendants who are made parties by the amendment of the bill. And a new retaining fee for solicitor and counsel should be allowed for the new defendants brought before the court by the amendment. They should also be allowed for the costs of their appearance and of separate answers, and for such other services as were necessary to be performed for them individually or collectively, in which the original defendants had no common interest with them ; and those costs it may be proper to tax in a separate bill.

The appeal, by all the defendants jointly, from the decree of the vice chancellor is in the nature of a new suit, and may also be taxed in a separate bill in behalf of all the appellants. But as this was a joint proceeding, only one retaining fee and one set of charges can be allowed upon the appeal. To this bill the defendant’s solicitor is to be permitted to add the necessary expenses of filing the remittitur, and of the motion to make the decree of the court for the correction of errors a decree of this court, if they are not already embraced in the bill as taxed ; and any other proper charges which were left out of the former bills through inadvertence.

The charges for the application to the court for the examination of Webber as a witness in behalf of his co-defendants were not properly taxable against the adverse party as costs in the cause, even if the application was successful. For if he was a competent witness, the necessity of a special application to the court must have arisen from the neglect of the defendants’ solicitor to enter a common order for his examination within the time limited- by the 73d rule for that purpose. And in no case can costs which have been rendered necessary by the negligence of a party, or of his solicitor, be taxed as costs in the cause, against the adverse party, who was not in fault in relation thereto.

The costs must be retaxed upon these principles, unless the parties can now agree upon the amount to be paid, without further expense. And if a relaxation shall be necessary, the defendants’ solicitor is to be at liberty to make out a new bill omitting all of the objectionable charges and adding thereto any proper charges which were omitted in the former bill by mistake; to which new bill he is to annex the usual affidavit in conformity with the provisions of the 130th rule of the court.

Neither party to have costs as against the other upon this application.


text:
    In the matter of Root, an habitual drunkard.
    In proceedings to obtain a commission, and for the appointment of the committee of the person and estate of a lunatic, or an habitual drunkard, the court is not authorized 10 allow to the solicitor of the petitioner any thing beyond the ordinary taxable costs and taxable disbursements.
    And to entitle the solicitor for an order directing the committee, to pay him for his taxable costs, a sum beyond the fifty dollars allowed by the 162d rule of the court, there must be an affidavit stating the special circumstances which render an increased allowance necessary.
    Where a specific allowance for the services of a solicitor is prescribed in tho fee bill, the court has no authority to allow him any greater sum for the performance of such services.
    The travelling expenses of the solicitor arc in no case properly taxable as disbursements.

      A counsel fee is not taxable, on the execution of a commission of lunacy or a commission to inquire as to habitual drunkenness. Nor is a retaining fee for counsel allowed in such proceedings.
    The rol'citor cannot he allowed, on taxation, charges for drawing, engrossing and copying the jurat to a petition.
    The solicitor on a commission of lunacy, or of habitual drunkenness, is not entitled to charge for a copy of the commission to keep ; nor for drawing and engrossing the return to the commission, or the panel of jurors, or the sheriff’s return to the precept to summon the jury ; nor lor engrossing the precept, or for a copy of the same to keep. But he is entitled to an allowance, by the folio, for the draft of the precept, and for one fair copy thereof to be signed by the commissioners.
    The solicitor, upon the execution of a commission of lunacy, is not entitled to charge for drawing oaths, to be administered to the jury, and to wit. ness, or for instructions to the commissioners how theyaie to discharge their duties ; nor for a copy of the inquisition, in addition to the draft and engrossment thereof.
    Fair copies of pleadings and proceedings in a cause, to be retained by the solicitor in addition to the drafts, are only allowable on taxation in those eases in which such copies will probably become necessary, or may be wanted for future use; as in the case of pleadings, petitions, And when such copies arc actually made and preserved by the solicitor, for future use in the progress of the cause.
    A notice to be served cannot be taxed by the folio ; as a specific allowance for every such notice is made by the fee bill.
    The counsel fee upon an ex parte motion is only one dollar and fifty cents. And the larger counsel fee of two dollars and fifty cents, is only allowed upon motions which are actually argued, and when such argument is opposed by an adverse party.
    The taxing officer is only entitled to a fee of one dollar for taxing the costs upon a commission of lunacy, or other special proceeding. The larger sum of one dollar and fifty cents is only allowed upon the taxation of costs after a final decree in a cause.
    The master who approves the sureties in a bond, is only entitled to the specific allowance of one dollar, fixed by the fee bill? and he cannot be allowed an additional charge for swearing the sureties who arc required to justify.
    The jurors upon the execution of a commission of lunacy are entitled to twelve and an half cents each.
    February 16.
    This was an application by the solicitor for the overseers of the poor, upon whose application a commission in the case of an habitual drunkard had been issued, for the payment of ihe costs of the proceedings, which had been taxed at a sum exceeding the amount of §50, specified in the 162d rule of the court. In addition to the costs as taxed, the solicitor claimed an allowance of ten dollars, as a counsel fee upon the execution of the commission and the expense of a horse and wagon to take him to the place where the commission was to be executed.

      K. Miller, for the petitioners.
   The Chancellor.

Upon an application to the court for an order that the committee of a lunatic or a drunkard pay a sum exceeding the amount limited by the rule for the expense of obtaining the commission and of the other proceedings to obtain the appointment of a committee, there should be an affidavit showing the necessity of an increased allowance, if there is any thing special in the case. For in ordinary cases the legal taxable costs of such a proceeding will not exceed the $50, which by the rule the committee is authorized to pay without a special order.

Costs and expenses, in the rule, was not intended to included any thing beyond taxable costs and taxable disbursements. For where the fee bill has prescribed a fixed allowance for certain services, the court has no authority to direct a greater allowance to be paid to the solicitor for such services than the amount thus prescribed by the legislature in the fee bill. Where a commission of lunacy is issued, it is the duty of the solicitor for the petitioner to name commissioners who will be competent to execute the commission, and to give the proper instructions to the jury, without the aid of counsel to perform that duty for them. For this purpose a solicitor or counsellor of this court should always be named one of the commissioners ; and in cases of importance the commission ought not to be executed without his presence. The taxing officer was therefore right in rejecting the charge for a counsel fee upon executing the commission; as no such allowance is found in the fee bill. The travelling expenses of the solicitor to attend on the execution of the commission were also properly rejected; as such expenses are in no case properly taxable as disbursements. (2 Paige’s Rep. 348. 5 Idem, 553.)

It appears from the taxed bill that a great number of charges have been allowed by the taxing officer which according to repeated decisions of this court were not taxable. Á retaining fee to counsel is not allowed in proceedings of this kind. And if the taxing officer had examined the decision of this court referred to in the note to the first item of counsellor’s fees, in the fee bill which was published with the revised rules of 1837, he would not have fallen into the error of allowing such a charge. The charges for drawing, engrossing, and copies of the several jurats to the petitions should also have been rejected in accordance with the reported decision of this court in Stafford v. Bryan, (2 Paige’s Rep. 51.) The charge for a copy of the commission, to keep, was not taxable ; as the draft is all that is necessary in such cases. The solicitor is not entitled to charge for the drawing and engrossing the return to the writ by the folio ; as it is the duty of the commissioners to make their own return. The same objection exists to the charge for drawing, engrossing, and copy of the panel of jurors for the sheriff, and engrossing the sheriff’s return on the precept to summon the jury. Those services should be performed by the sheriff himself. And the fee bill has given him a specific compensation for his services ; wdiich in this case amounted, for the three items allowed by law, for summoning the jury, returning the precept, and attending the jury upon the taking of the inquisition, to one dollar and sixty-two and an half cents. That allowance is made in another part of this bill for the sheriff’s fees ; and no pari of it should have been taxed in another shape as an allowance to the solicitor. Engrossing the precept for a jury and a copy of the same to keep were not taxable. The draft of the precept, and a fair copy thereof to be signed by the commissioners only wrnre allowable. This precept is to be returned to the commissioners merely, and need not be returned to the court and filed there. It does not, therefore, come within the clause of the fee bill allowing fourteen cents a folio for engrossments to be filed. (2 Paige’s Rep. 469.) And the charge for filing the panel and sheriff’s return to the precept should also have been disallowed by the taxing officer. The charges for drawing oaths to be administered to the jury and witnesses should not have been taxed ; as such oaths are not required to be in writing, but should be administered orally. And if the commissioners do not know how to execute the commission themselves, they must employ some one to instruct them, and pay for such instruction out of the allowance given to them for their services. For the same reason the charge for drawing instructions to the commissioners, how they are to discharge their duties, should also have been disallowed. Where a commission is to be executed in a foreign country, where the persons appointed to execute it are presumed to be unacquainted with our laws, instructions may be necessary to enable them to execute the commission in due form. But upon the execution of a commission of lunacy here, if the solicitor selects proper persons as commissioners, to be nominated for the approval of the court, they will be able to discharge their duty • even if he does not himself attend upon the execution of the commission to instruct them verbally how it is to be executed. The master should not have taxed a copy of subpoena to keep, in addition to the draft and engrossment. Neither -was a copy of the inquisition, in addition to the draft and engrossment, taxable; as the draft would be all that could be necessary for the solicitor to have enabled him to attend to the further proceedings in the case. Fail-copies of pleadings and proceedings in a cause to be retained by a solicitor, in addition to the drafts, are only to be allowed in those cases in which such copies will probably become necessary, or may be wanted for future use ; as in the case of pleadings, petitions, &c. when such copies are actually made and preserved by the solicitor, for future use in the progress of the cause.

The notice to the drunkard, of the execution of the commission, was improperly taxed by the folio. By adopting that course, a service for which the legislature had given to the solicitor a specific fee of thirty-seven and an half cents, is taxed at nearly three times that amount. This was a notice to be served ; and therefore comes within the specific allowance in the fee bill for a necessary notice actually served. It was not like the notice, required to be filed to make, the commencement of the suit constructive notice to subsequent purchasers of real estate; which may be taxed by the folio in ordinary cases. (See Doe v. Green, 2 Paige’s Rep. 351.) The copy to annex to the affidavit may be allowed, as it rendered the affidavit much shorter; but as the affidavit was only for the satisfaction of the commissioners that the notice had been served, and was not a paper to be filed in court, the charge for engrossing the affidavit was not taxable. The affidavit of the identity of the wife of the drunkard who signed the consent upon the petition, for the committee, was an entirely useless expense. The inquisition, if properly drawn, showed who the nearest relatives of the drunkard were. And where one of such relatives consents to the petition, by endorsing her consent thereon, the court does not require an affidavit that the petitioner has not committed a forgery by putting the name there himself without authority. The taxing officer went far enough when he allowed forty-nine cents for drawing, engrossing and copying the consent itself, which probably did not exceed three or four lines ; and he should have rejected the further charge for the useless affidavit. The charge for an engrossed copy of the draft order for the register to enter, should not have been allowed; as the court in the case of Doe v. Green, (2 Paige’s Rep. 352,) had decided that it was not taxable. The counsel fee upon the ex parte motion for the appointment of a committee should have been taxed at one dollar and fifty cents ; as the larger counsel fee of two dollars and fifty cents is only allowed upon motions which are actually argued •, when such argument is opposed by an adverse party. The present fee hill in that respect, urns intended to be the same as Chancellor Kent’s bill of April, 1818. And his remarks upon these items evidently show that the larger sum was not intended to apply to motions ex parte. (See Blake’s Pr. 1st cd. App. 116.) That charge must, therefore, be allowed at one dollar and fifty cents merely ; and the solicitor is probably entitled to a similar charge, upon the ex parte motion for the commission, which has been left out of the bill by mistake. The solicitor was not entitled to the allowance for drawing ar.d engrossing the acknowledgment of the obligors in the bond ; as that was a part of the duty of the officer who took the acknowledgment ; whose fees for such acknowledgment have also been allowed by the taxing officer. The allowance to the master for examining into the circumstances of the sureties and approving the same, is fixed by the fee bill at one dollar. This necessarily includes the swearing of the sureties, who are required to justify ; and no further allowance can be made for that, as a separate charge. The allowance for taxing the costs should not have been at the highest sum fixed in the fee bill, as it was not a taxation of costs after a decree in a cause. Neither was the solicitor entitled to charge for drawing his bill of costs ; as no such allowance is authorized by the fee bill. The copy to be taxed and filed only should have been allowed, at fifty cents. (2 Paige’s Rep. 52.) The residue of the charges in this bill which were for services that might never be performed; as they relate to a contemplated application to this court for an allowance beyond the $50, specified in the 162d rule, could not be legally taxed as prospective services. And the court had not authorized the taxing officer to report as to what would be a reasonable charge for executing the commission beyond what had been allowed by the legislature for the taxable costs and disbursements upon such a proceeding.

The illegal and improper items allowed by the master on taxation amount to $23,81, which deducted from the bill of costs as taxed leaves the amount to which the solicitor was entitled for his costs and taxable disbursements $48,60. To this should be added the counsel fee of $1,50 upon the application for the commission, not charged in the bill; making in all $50.10. This includes $2,25 for taking the acknowledgment of the bond, at the rate of thirty-seven and an half cents for each person named therein, which is charged as a part of the master’s bill ; though I presume it must have been for separate acknowledgments taken before a commissioner, who was in office previous to the passage of the law of the last session.

A doubt was suggested upon the hearing of this application whether any provision was made for paying jurors in a proceeding upon a commission of lunacy. The last item of the section of the fee bill relative to fees, however, clearly covers this case, and gives a fee of twelve and an half cents to each juror sworn upon the execution of the commission ; the number of which jurors should never exceed twenty-three. The taxing officer was not authorized, in this case, to allow for the attendance of witnesses ; as the statute prohibits him from taxing any charge of that kind without an affidavit stating the distance the witnesses respectively travelled, and the number of days they actually attended. (2 R. S. 653, § 7.) And the charge for witnesses in this case was not made out in the manner directed by the 131st rule of this court; so as to make the usual affidavit upon the bill of costs a sufficient compliance with this statutory proceeding to authorize the taxing officer to tax for witnesses’ fees without any further affidavit. I have not, however, disallowed that charge in the estimate I have made of the taxable costs, as there is no doubt that the solicitor has paid out that amount for witnesses’ fees. And the only object of reviewing this taxation was to see if there were any grounds for making an extra allowance for costs beyond what the committee was authorized to pay without any special order for that purpose. Upon an application for a re-taxation of costs, I should consider it my duty to reject any charge for witnesses’ fees which had been taxed contrary to the express statutory provision on the subject.

The application for an allowance beyond the $50 specitied in the 162d rule must be denied. That sum the committee will be authorized to pay, under the -rule, without any special order of the court directing such payment; upon the production of the register’s certificate that the taxed bill of costs has been filed, amounting to $50 and upwards.


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    Sherwood vs. Reade and others.
    Where the commissioners, under the act of 1837, for loaning certain monies of the United States, advertised and sold mortgaged premises on the first Tuesday of February, pursuant to the statute, for the non payment of the interest due in the preceding October, and some of the terms of the sale were, that the premises should be put up at the amount of the mortgage and interest with the eosts and expenses of such sale, and sold to the highest bidder, who should forthwith pay fourteen per cent of the purchase money, and the expenses of tile sale, and execute a written agreement to comply with the other terms of the sale, and the person to whom the premises were struck off refused to pay the fourteen per cent or to sign the written agreement; Held, that the commissioners were authorized to put up the premises for sale again immediately; and that they were not bound to wait until the third Tuesday of September, if there was a purchaser present at the re-sale on the first Tuesday of February, who was willing to bid to the amount of the mortgage and interest and costs, and to comply with the terms of the sale and pay the purchase money.
    February 16.
    This was an appeal from a decision of the vice chancellor of the first circuit, refusing to dissolve an injunction. In 1838, G. G. Root being the owner of three lots of ground in the city of New-York, mortgaged the same to the commissioners for loaning certain monies of the United States for the county of New-York, to secure the payment of $4000, loaned by them under the provisions of the act of the 4th of April, 1837. Root subsequently conveyed the premises to S. Sherwood, the complainant, subject to that mortgage. And Sherwood then mortgaged his equity of redemption therein, to J. R. Stuyvesant, to secure the payment of $6000 and interest; which last mentioned mortgage Stuyvesant assigned to the defendant, Hooker., On the first Tuesday of October, 1839, the sum of $280 became due for interest on the mortgage given to the loan commissioners, and the same not being paid, the commissioners advertised the mortgaged premises to be sold on the first Tuesday of February, 1840 ; according to the directions of the statute. At the time of the sale, and before the premises were put up by the auctioneer, he publicly read the terms and conditions of the sale ; which were, in substance, that the premises should be put up at the amount due upon the mortgage to the commissioners, together with the costs and expenses of the sale, and sold to the highest bidder; that the person to whom the premises were struck off by the auctioneer, should forthwith pay fourteen per cent of the purchase money, and the expenses of the sale, and should execute a written agreement to comply with the the terms of the sale ; and that if this part of the condition of the sale was not complied with the premises would be immediately re-sold. The property was put up for sale by the commissioners upon these terms and was struck off to W. B. Sherwood, at the price of $11,000, who declined paying the fourteen per cent, or to subscribe the conditions of sale. The premises were then put up a second time, the same day, and were struck off to the defendant Reade, for the price of $10,500 ; who had been instructed by Hooker to bid to that amount for him, to cover the amount due on his mortgage upon the premises, in addition to what was due to the loan commissioners. Reade immediately complied with the conditions of the sale, by paying what was required to be paid down, and subscribing the agreement to pay the residue of the purchase money at the end of ten days. S. Sherwood, who was the owner of the equity of redemption, subject to the two mortgages, insisted that the neglect of the first purchaser to comply the terms of sale, gave him, as owner of the equity of redemption, a further time to redeem under the provisions of the statute ; and that the commissioners had no right to put up the property a second time on that account. He therefore filed his bill in this cause against Reade and Hooker, and against the loan commissioners, to restrain the giving of a conveyance pursuant to the terms of sale, or the doing of any other act to impair the complainant’s right in the premises.
    Upon the coming in of the answers, the defendants applied for a dissolution of the injunction ; which application was denied by the vice chancellor. The respondent having neglected to appear at the hearing of the appeal, the case was submitted upon the ex parte argument of

      D. P. Hall, for the appellants.
   The Chancellor.

The question presented for the consideration of the court in this case, arises under the 33d section of the act of April, 1837, authorizing a loan of certain monies belonging to the United States, deposited with the state of New-York for safe keeping. (Laws of 1827, p. 130.) The statute directs the commissioners to advertise the mortgaged premises for sale, in case the interest is not paid, and to sell the same at public vendue on the first Tuesday of February, to the highest bidder ; and the purchaser on such sale is to hold the land discharged of all equity of redemption. The 33d section then, provides that when the mortgaged premises are thus exposed for sale, and no person shall bid at such sale a sum equal to the amount due on the mortgage for principal and interterest and the expenses of the advertisements and the sale, “ or if any person to whom any such lands shall at any such sale be struck off, shall not pay for the same then, an.l in every such case the commissioners shall enter and take possession of the lands and premises, and let the same upon the best terms they can obtain, for the benefit of the state,until the third Tuesday of September then next; when the commissioners are again to expose the same upon a six weeks’ notice. And if upon such sale no person shall bid or offer to give for the said lands and premises a sum equal to the amount due on the mortgage for principal and interest, including all costs and expenses, "or if any person to whom any such lands and premises shall at any such sale be struck off, shall not pay for the same,” then the commissioners are to bid therefore in behalf of the state, to the amount of the sum at which the premises shall have been appraised j if necessary to prevent a sale to some other person for a less sum. The section then provides for a redemption of the premises at any time previous to such sale in September, where there has not been an actual sale thereof in February, as contemplated in the previous section.

The construction which the counsel for the complainant puts upon this 33d section of the act is, that if any person bids to the amount of the mortgage, at the sale in February, although he immediately refuses to complete his purchase, the commissioners are precluded from putting up the premises again and selling them to a real bidder who is willing to complete his purchase. And the vice chancellor probably must have taken the same view of the provisions of the act, or he could not have sustained this injunction. If such was the intention of the legislature, I think the purchaser did not go far enough to prevent a re-sale ; as he ought at least to have signed the terms of sale so as to render himself liable for the deficiency, in case the premises should be sold for a less price upon the subsequent sale in September.

Upon a careful examination of the provisions of the statute, however, I am satisfied the legislature were not guilty of the absurdity of directing a mere formal sale of the premises in February, which any irresponsible person could defeat, by bidding higher than any one else and then refusing to pay his bid. The obvious intention of the legislature was to prohibit a sale of the property in February, unless some purchaser could be found who would purchase the mortgaged premises and pay for them at a sum or price which would he sufficient to cover the. amount due upon the mortgage with interest and costs. And if no such bidder could be found, that then the commissioners should take possession of the premises, and offer them for sale again in September ; unless the owner of the equity of redemption should in the meantime pay up the amount of the interest and costs. There is nothing therefore in that part of the section which, either in terms or by necessary implication, prevents the commissioners from making it a condition of the sale that if the bidder does not immediately pay the amount of the bid, or so much thereof as they may have deemed necessary to ensure the completion of his purchase, that it shall be considered as no bid, and that the premises shall be put up and re-sold to some one who wishes to become a real purchaser ; subject, however, to the restriction imposed by law upon the original bidding, that there shall be no sale of the premises until September unless some person can be found at the sale in February who will bid to the amount required by law, and pay such bid. By adverting to the latter part of the same section, it will be seen that similar language is used in relation to the sale in September. At that sale the commissioners are required to bid for the state to the amount of the appraised value of the premises, not exceeding however the amount due upon the mortgage and costs. And this they are to do, in the language of the previous clause of the section, “ if any person to whom any such lands and premises shall at any such sale be struck off, shall not pay for the same.” Here there can be no doubt that the legislature intended that the premises should not be struck off to any one, other than the state, unless upon a bid to the amount of the appraised value, if that amount was necessary to satisfy the debt and costs ; and incase any one bid to that amount, or more, and the premises should be knocked down to him accordingly, that they should be immediately put up and re-sold if he did not comply with the terms of the sale by paying the purchase money. For if the premises cannot be immediately put up and re-sold where they have been struck off to one who bids more than the appraised value, but neglects to pay his bid, the premises never can be sold, under the statute, so as to deprive the owner of the equity of redemption of the power to redeem upon paying the amount of the mortgage with interest and costs. This being the obvious construction of the language used by the legislature in the latter part of this section, there is no reason why the same construction should not be put upon similar language used in the previous part of that section, relative to the sale in February. I have no doubt therefore that the commissioners had the right to make it a condition of the sale that if the terms upon which the premises were sold should not be complied with by the purchaser, the land should be put up and re-sold. And the first sale being a nullity, in consequence of the refusal of the purchaser to comply with the terms, 'the subsequent sale by the commissioners on the day specified in the statute was a valid sale ; and was a perfect bar to the equity of redemption of the complainant in the premises.

Neither has he any right to complain of any hardship in the case ; for he says the premises were originally bid off by W. B. Sherwood, without his knowledge or privity. He therefore had suffered the mortgaged premises to be advertised and sold, in consequence of his neglecting to pay a trifling sum of interest due on the mortgage to the loan commissioners, and did not even attend the sale or send any one there to bid for him ; thus compelling his mortgagee, who lived at a distance, to employ an agent to attend the sale and bid in the property for his own indemnity. And there is nothing in this case to show that the complainant has ever applied to Hooker or Reade to permit him to redeem the premises on equitable terms, or upon any terms whatever; or offered to pay them the amount which they had been compelled to pay in consequence of his gross neglect. The application of W. B. Sherwood, who was not the agent of the complainant, and who bid off the premises without his knowledge or privity, was an application on his own account to get the benefit of his bid which' had been relinquished previous to the putting up of the premises the second time. The complainant therefore cannot claim any equity from this offer of a third person who had no right whatever to the premises ; even if such an offer if coming from himself should have been accepted. The mortgage to Hooker had in fact been satisfieri, by tbe sale for a sufficient amount to pay the same beyond the amount due on the mortgage to the loan commissioners. Any new arrangement made between Hooker and a third person, therefore, in relation to the premises, without getting payment of what was due him on his mortgage, would have left the complainant discharged of any personal liability on his bond ; and Hooker would have been obliged to run the risk of the property being worth sufficient, at a future day, to satisfy the whole amount of both mortgages, with interest and costs of foreclosure.

The only claim of the complainant to equitable relief, therefore, depends upon the question whether the commissioners were bound to strike off the premises absolutely to an irresponsible purchaser, who refused to pay his bid or to sign an agreement by which he would be rendered liable for the payment of the deficiency upon a re-sale in September. And I have arrived at the conclusion that the complainant was clearly wrong on that question. The order appealed from must be reversed, with costs. And the injunction must be dissolved ; so that the commissioners may proceed and complete the sale by receiving the balance of the purchase money, except that part thereof which belongs to Hooker as the assignee of the second mortgage, and giving a deed of the premises to the purchaser according to the directions of the statute.


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    Post vs. Dart & The Bank of Utica.
    Where the holder of a usurious bond and mortgage files a bill of foreclosure against the mortgagor, and makes a subsequent judgment creditor of the latter a party to the suit, for the purpose of obtaining a decree which will destroy the lien of the judgment upon the premises, in the hands of the purchaser under such decree, the judgment creditor may avail himself of the defence of usury, to the full extent of his legal lien upon the premises by virtue of his judgment; although the mortgagor suffers the bill to be taken as confessed.
    And in such a case the mortgagor, who has suffered the bill of foreclosure to be taken as confessed against himself, is a competent witness, for the judgment creditor, to prove the mortgage usurious; as a dismissal of the bill as to the judgment creditor will not prevent a decree of foreclosure and sale, as againsl the mortgagor, and a decree over against him for the deficiency on such sale.
    A purchaser of a mere equity of redemption in mortgaged premises, incumbered by an usurious mortgage, who, by the terms of his conveyance, takes the premises subject to the lien and payment of such mortgage, cannot set up the defence of usury in the mortgage; and thus obtain an interest in the land which the mortgagor never agreed or intended to transfer to him.
    Nor can a mere stranger insist upon the invalidity of a usurious mortgage in respect to which he is neither a party or a privy.
    But the defence of usury may be set up by any one who claims under the mortgagor, and in privity with him. For the usurious mortgage is void, not only as to the mortgagor, but as to all others who succeed to his rights in the mortgaged premises, either by operation of law or otherwise.
    A judgment creditor, whoso judgment becomes a legal lien upon the whole interest of the mortgagor in premises incumbered by a prior usurious mortgage, may obtain a perfect title to the premises, by a sale and purchase under his judgment; and may then enjoy the same as fully as the judgment debtor could have done had lie continued to be the owner.
    February 17.
    This was an appeal, by the complainant, from an order of the vice chancellor of the fifth circuit, for a commission to take the testimony of A. Dart, one of the defendants, as a witness in behalf of his co-defendant, The Bank of Utica and to extend the time to close the proofs for sixty days, to enable the respondent to get the commission executed and returned. The bill was filed to foreclose a bond and mortgage given by the defendant Dart; who suffered the bill to be taken as confessed against him. The Bank of Utica, which had a judgment against Dart that was a lien upon the mortgaged premises, put in an answer, alleging that the bond and mortgage were usurious and void. And upon the usual affidavit, that Dart was a material witness for his co-defendant, the bank, and was not interested in the matter to which he was • to be examined, an order of course was entered for his examination as to any matter in which he was not interested ; subject to all just exceptions.

      W. J. Bacon, for the appellant,

      J. V. L. Pruyn, for the respondent.
   The Chancellor.

Two objections are made to the order appealed from : First. That a judgment creditor whose judgment is a lien upon the mortgaged premises subsequent to the giving of the mortgage, cannot set up the defence of usury to a bill to foreclose such mortgage as against him ; and Secondly. That the mortgagor is interested in favor of the bank, so that he cannot be a witness to establish the defence set up in the answer.

A mere stranger cannot insist upon the invalidity of an usurious security ; as in the case mentioned by Justice Periam, in Carter v. Claycole, (1 Leon. 307,) where a trespasser evicted the mortgagee and then set up the defence of usury, to the action of the latter to recover the possession. But the defence of usury may be set up by any one who claims under the mortgagor, and in privily with him. Ord says, “ an usurious security is void not only against the borrower and his sureties, but also against all persons who claim title under them to the property intended to be affected by the usurious contract.” (Ord on Usury, 131. See also Lloyd v. Scott, 4 Peters’ Rep. 205.) The purchaser of the mere equity of redemption in the mortgaged premises encumbered by an usurious mortgage, who, by the terms of his conveyance, takes the premises subject to the lien and payment of such mortgage, cannot, indeed, set up the defence of usury, and thus obtain an interest in the land which the mortgagor never agreed or intended to transfer to him. (Given v. Kemp, 13 Mass. Rep. 575.) But an usurious mortgage is void not only as to the mortgagor but as to all others who succeed to his rights in the mortgaged premises, either by operation of law or otherwise. A judgment creditor, therefore, whose judgment becomes a legal lien upon the whole interest of the mortgagor in such premises, may, by a sale and purchase under his judgment, obtain a perfect title to the land; and may then enjoy the same as fully as the judgment debtor might have done had he continued to be the owner. It follows, of course, that when the holder of the usurious bond and mortgage files his bill in this court, to enforce the same against the land, and makes the judgment creditor a party for the purpose of depriving him of that legal lien upon the premises, by a decree of this court, such judgment creditor may avail himself of the defence of usury to the full extent of his legal lien upon the premises by virtue of his judgment. This, however, will not prevent the usual decree of foreclosure of the mortgage against the mortgagor himself, and a decree over against him for the deficiency ; if he does not think proper to contest the complainant’s right. And the only effect of the defence of the judgment creditor will be to have the bill dismissed as to himself; so that the purchaser under the decree will take the title subject to the payment of the judgment, if it should not be collected out of other property of the judgment debtor.

It follows from this view of the subject, that the mortgagor who has suffered the bill to be taken as confessed, and who is bound to pay the bond and mortgage as well as the judgment, stands perfectly indifferent between the parties, upon the question whether the mortgage or the judgment is entitled to a preference in payment out of the proceeds of the mortgaged premises. And if so, he is a perfectly competent witness to sustain the defence of usury set up by the bank.

The order appealed from must therefore be affirmed with costs.


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    Ellsworth vs. Cook and wife.
    Where a judgment is recovered against the husband, during the pendency of a partition suit, against him and his wife, for the partition of lands of which he holds an undivided share in right of his wife, a subsequent sale of the lands under the decree in partition divests the legal Hen of the judgment creditor upon the husband’s legal estate in the lands, and converts it into an equitable lien upon the husband’s interest in the fund produced by the sale ; to the same extent as the legal lien.
    A recovery in ejectment, by the husband and wife, of lands belonging to the wife, gives to the husband such a constructive seisin of the lands as to entitle him to a life estate therein as tenant by the curtesy initiate.
    So a decree in partition, settling the right of the husband and wife to an undivided portion of the land in possession of and claimed by the complainant in the partition suit, and directing a sale of the whole premises for the purpose of making partition of the fund produced by the sale, is a sufficient constructive seisin to entitle the husband to claim an interest as tenant by the curtesy.
    Where the real estate of the wife, in which the husband has a life estate as tenant by the curtesy initiate, is sold under a decree in partition, the creditors of the husband may, by a creditor’s bill, reach his interest in the fund produced by the sale, to the extent of his legal interest in the estate sold. But they cannot reach the wife’s reversionary interest in the fund after the termination of the husband’s life interest therein ; where it has not been paid over to the husband, but has been invested for the separate use of the wife and her children under the order of the court.
    An application by a party or privy to a suit or proceeding in chancery, for an order to stay the proceedings against him, on the ground that it is inequitable to proceed therein, must be made directly to the court itself, in that suit or matter; and he is not authorized to obtain a stay of such proceedings by a preliminary injunction allowed by an officer out of court, upon a bill filed for that purpose.
    March 2.
    This was an application to dissolve an injunction upon the matter of the bill only. The complainant was a judgment creditor of T. Cook, previous to the sale of the real estate of the wife of the latter, under a decree of this court n the nature of a decree in partition • and the object of the bill was to reach the husband’s interest in the proceeds of the sale, which were in the hands of the complainant, as the solicitor and guardian ad litem of Cook and wife in the suit in which that sale had taken place. The injunction restrained the defendants from proceeding, upon a petition to the chancellor, to compel the complainant to deposit the moneys, in his hands, in the New-York Life Insurance and Trust Company, in the name of the register of this court, to accumulate lor the separate use of the defendant Mary Ann Cook, the wife, subject to the further order of the court of chancery ; as he had been directed to do by a previous order.

      J. Ellsworth, in person, for complainant.

      W. A. Beach, for the defendants.
   The Chancellor.

This is not an ordinary creditor’s bill to reach the equitable interest of the husband in this fund, after the return of an execution at law unsatisfied ; as it contains none of the averments required by the rules of this court to be inserted in such bills. The whole equity of the bill, therefore, depends upon the fact that the complainant had a legal lien upon the husband’s interest in the real estate of his wife previous to the sale under the decree ; and that the effect of the sale was to transfer the lien of the judgment from the husband’s legal estate in the land to his interest in the fund produced by the sale, to the same extent, ihe bill is defective, however, in not stating the time of the commencement of the suit in chancery by Putnam against the defendants and others. For if that suit was subsequent to the recovery of the complainant’s judgment, the lien of the judgment upon the husband’s interest in the land was not divested by the sale under the decree. And the complainant’s remedy, in that case, would be to proceed and sell the husband’s interest in the land under the judgment.

That, however, is a mere technical slip in drawing the bill, which would of course be cured by an amendment; as there is no doubt of the fact, that the complainant’s judgment was obtained during the pendency of that suit. The lien of the judgment was therefore divested by the sale under the decree ; and by the effect of such sale, it became an equitable lien upon the husband’s interest in the fund produced by such sale, to the same extent. So far the judgment creditor of the husband has a preferable claim upon the fund produced by the sale under the decree, but no further. (See Van Duzer v. Van Duzer, 6 Paige’s R. 366.) Upon the residue of the fund, produced by the sale of the interest which belonged exclusively to the wife, the creditors of the husband have no claim, either at law or in equity. They cannot, therefore, be permitted to interfere with the disposition which the court has made of the fund, to that extent, for the separate use of the wife and her heirs ; under the order of the 20th of April, 1838.

The husband, by virtue of his marriage, acquires the legal title to the rents and profits of his wife’s real estate during their joint lives. To that extent, the judgment of the complainant gave him a preferable claim upon the fund, without regard to the question whether he had such a seisin previous to the sale under the decree as to have entitled him to a life estate in the land, after her death, as tenant by the curtesy. But in addition to that, I am satisfied he had such a seisin in this case, of two thirds of his wife’s share of the premises, as to make him a tenant by the curtesy initiate; so as to entitle him to a continuance of his estate in those two thirds during the whole period of his own life, in case he survived his -wife.

It was unquestionably the law of England, at an early day, that to entitle the husband to an estate for life in his wife’s real estate, after her death, as tenant by the curtesy, he must have been actually seised of the land in right of his wife at some time during the coverture. (Coke Litt. 29, a.) That principle undoubtedly arose out of the ancient law of disseisin ; and the principle of the ancient common law, that the disseisin of the tenant of the freehold actually divested his estate in the land, and reduced it to a mere right. Hence, even the English courts have been struggling for more than a century to sustain the right of the husband to his curtesy in the estate of his wife, and of the wife to her dower in the lands of her husband, in every case in which there was not an actual disseisin. Thus, it has been held that the possession of a lessee, under a lease reserving rent, is an actual seisin of the husband so as to entitle him to a life estate in the land as tenant by the curtesy ; although he neither received or demanded rent during the life of the wife. (De Gray v. Richardson, 3 Atk. 469.) And in another case, where the wife was entitled to an undivided third part of the premises as the heir of her brother, but was kept out of the possession during the continuance of the coverture, by the other tenant in common, who claimed possession, for the brother, of that third of the estate, upon the supposition that he was still living, this was held a good constructive seisin of the husband during coverture, to entitle him to a life interest in that part of the estate as tenant by the curtesy. (Sterling v. Penlinton, 3 Eq. Cas. Abr. 730.)

In the case under consideration, I think the bill shows a sufficient constructive possession, in the husband, of his wife’s share of the land, previous to the sale under the decree, to give him a vested estate therein as tenant by the curtesy initiate ; except as to that third thereof in which the mother was entitled to dower. The recovery in ejectment was of itself equivalent to an actual entry upon the land, or at least to an attempt to enter thereon ; so as to give him a constructive seisin in deed, sufficient to have entitled him to hold the estate as tenant by the curtesy, if his wife had died before the actual execution of the writ of possession. But if that was not sufficient, the decree of this court settling the rights of the several parties to the house and lot in question, and directing a sale thereof for the purpose of partitioning their several rights, certainly was equivalent to the taking of an actual possession by the husband of his wife’s undivided share of the premises, subject to the right of dower; as to which right Putnam was held to be entitled to the possession as tenant in common. The lien of the complainant’s judgment, upon the interest of the husband as tenant by the curtesy initiate, became perfect, therefore, previous to the sale of the estate under the decree.

I think, however, the objection is well taken, that a preliminary injunction was not necessary or proper in this case, to protect the equitable lien of the complainant upon the husband’s interest in this fund; even if this bill was necessary to enable the complainant to reach that interest. In the case of Dyckman v. Kernochan, (2 Paige’s R. 26,) this court decided that an application, by a party or privy to a proceeding in this court, to stay such proceeding, must be directly to the court itself, in the matter of the suit or proceeding, for an order to that effect; and that an officer out of court had no authority to allow an injunction for that purpose. Here the complainant was the party against whom the proceeding was instituted, to compel him to pay over the money in his hands, as the solicitor and guardian ad litem of the petitioners. And if the nature of his claim was such that it could not be fully and effectually disposed of on the petition of these defendants, his proper course was to show that fact upon the hearing of the petition ; and to ask for an order suspending the decision as to so much of the fund as was equal to the value of the life estate of the husband therein, upon the principle of life annuities, until the decision of his claim against the husband could be settled by the decree of this court upon the bill which had been filed for that purpose ; or that the order to pay the fund into court should be without prejudice to his claim upon that part thereof which was subject to the lien of the judgment. The effect of this proceeding by injunction, if it can be sustained, is not only to prevent the petitioner from obtaining an order to pay into court that part of the fund, but also to stay the application as to that part which it is admitted belongs exclusively to the wife.

For these reasons, the injunction must be dissolved.


text:
    The North River Bank vs. Rogers and others.
    Where the complainant, in a foreclosure suit, falsely alleged in his bill that no proceedings at law had been had for the recovery of the debt secured by the mortgage .* Held, that a plea, in bar of the foreclosure suit, that the complainant, before the filing of his bill, recovered a judgment at law for the debt secured by the mortgage, was a valid pica; although it contained no negative averment that an execution had not been issued on such judgment and returned unsatisfied»
    If the complainant, in a foreclosure suit, omits to state in bis bill whether any proceedings have been had at law for the recovery of the debt secured by the mortgage, or if he states the recovery of a judgment at law for the mortgage money, without also" alleging that an execution has been issued on such judgment and returned by the sheriff unsatisfied, the defendant may demur to the bill. And the complainant cannot, by a false averment that no judgment has been recovered for the mortgage debt, cast the bur-then upon the defendant of alleging and proving that the remedy at law has not been exhausted, by the return of an execution unsatisfied ; after proving that a judgment at law had been recovered previous to the filing of the hill.
    Where the allegation in a foreclosure bill, that no proceedings at law have been had for the recovery of the mortgage debt, is put in issue by the answer, if the defendant, at the hearing, proves the recovery of a judgment before the commencement of the foreclosure suit, the complainant will not he permitted to show the issuing of an execution and a return thereof by the sheriff unsatisfied. But he must amend his bill by striking out the false allegation, and stating therein the fact of the recovery of the judgment and the issuing and return of the execution unsatisfied.
    March 2.
    This was an appeal from a decretal order of the vice chancellor of the first circuit, overruling the plea of the defendant Stevenson. The bill was filed to foreclose two mortgages, given to the complainants by the defendants D. Rogers and wife and S. D. Rogers and wife ; and the bill contained the usual averment that no proceedings at law had been had, by the complainants, for the recovery of the money secured by the bonds and mortgages mentioned in the bill. To this bill the defendant Stevenson, the assignee of the mortgagors, pleaded in bar the recovery of a judgment in the supreme court, by the complainants, against such mortgagors, for $200,000 of debt, and $23,97 damages and costs j which judgment, the plea averred, was for the same identical indebtedness which was secured, or alleged to be secured, by the bonds and mortgages set forth in the bill.

      L. H. Sandford, for the appellant,
    S. G. Raymond, for the respondents.
   The Chancellor.

The plea in this case negatives a material allegation in the complainants’ bill, which allegation is essential to the right of the complainants to proceed in this court. The revised statutes provide that upon filing a bill for a foreclosure of a mortgage the corn? plain ant shall state therein whether any proceedings have been had at law for the recovery of the debt secured thereby, and whether the debt, or any part thereof, has been collected. And if it appears that any judgment has been recovered at law for the debt, or for any part thereof, no proceedings shall be had in this court unless it appears that an execution, against the property of the defendant in such judgment, has been returned by the sheriff unsatisfied, (2 R. S. 191, § 155, 156.) The complainant, therefore, is bound to state, in his bill, whether any proceedings have been had at law to recover the debt secured by the mortgage ; or the defendant may demur to the bill for that cause. And if the complainant, in making the statement required by the statute, shows that a judgment has been recovered at law for the debt secured by the mortgage, or for any part thereof, his bill will still be subject to demurrer, unless he goes further, and shows that he has exhausted his remedy at law, upon such judgment by the return of an execution against the property of the defendant therein unsatisfied.

The vice chancellor must have overlooked this last provision of the revised statutes or he could not have supposed that the defendant, in his plea, was bound to go further than to set out the recovery of the judgment; thereby negativing the false allegation in the bill, that no proceedings at law had been had for the recovery of the debt. The fact of the recovery of the judgment being established, the onus of stating as well as of proving that the complainant has exhausted his remedy at law is, by the statute, cast upon him. And he cannot, by a false averment that no judgment has been obtained at law, compel the defendant to show by his plea, that his adversary has not exhausted his remedy at law by execution ; in addition to the negation of this false allegation in the bill by setting out the actual recovery of a judgment at law for the mortgage money. If the statute, instead of making it the duty of the complainant to state in his bill the proceedings at law, and to show the issuing and return of an execution where a judgment had been obtained, had merely made the neglect of the complainant to exhaust his remedy a matter of defence, to be set up by the adverse party, it probably would have been necessary for the defendant to have inserted the additional averment in his plea, that no execution had been issued upon the judgment, &c. But under this statute I am satisfied it is sufficient for the defendant to show the recovery of the judgment at law. And if an execution has in fact been issued on the judgment and returned unsatisfied, the only remedy for the complainants is to amend their bill; by striking out this false allegation and stating the proceedings at law truly, as they are required to do by the statute.

In this case the bill states the recovery of a judgment, which is probably the same that is mentioned in the defendant’s plea. But it does not appear by the bill that such judgment included any part of the money secured by the mortgages. Indeed, the very contrary appears, by the subsequent averment, that no proceedings at law had been had for the recovery of any part of the mortgage money. The defendant, therefore, could not demur to the bill upon the ground that no proceedings had been had by execution upon that judgment. He was, therefore, driven to this plea, that the judgment was in fact given for the same debt which was secured by the mortgage. And if the same matters had been stated in his answer the result would have been the same to the complainants, unless they amended their bill. For under their averment that no proceedings at law had been had, they would not have been allowed to give in evidence the return of an execution unsatisfied ; after the defendant had falsified such averment, by showing that there had been a judgment recovered at law for the mortgage debt.

The decree appealed from must therefore be reversed with costs; without prejudice to the complainants’ right to file a new bill after they shall have exhausted their remedy at law upon the judgment against the mortgagors. The complainants, however, are to be at liberty to take issue upon the plea, upon payment of the costs, if they think proper to do so within thirty days. Or if an execution upon the judgment had in fact been returned unsatisfied before the filing of this bill, they may within the same time apply to amend, by striking out the false allegation, and stating the recovery of the judgment for the mortgage money, and the issuing and return of the execution thereon. But as this is a sworn bill, an amendment of this kind cannot be allowed except upon affidavits explaining how the mistake occurred.

The proceedings are remitted to the vice chancellor.