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    Verplanck and others vs. The Mercantile Insurance Company of New-York and J. Barker.
    No persons are parties as defendants in a bill in chancery, except those against whom process is prayed, or who are specifically named and described as defendants in the bill.
    Where there was no prayer of process against a corporation by its corporate name, but only against the officers thereof, and the corporation was not ' described in the bill as being a party thereto, held, that' the corporation -was not before the court as a party to the suit.
    A receiver cannot be appointed to deprive the defendant of the possession of his property, ex parte, without giving him an opportunity to be heard in relation to his rights, except in very special cases, as where he is out of the jurisdiction of the court.
    In cases where it is proper to appoint a receiver ex parte, the particular circumstances which render such a summary proceeding necessary, should be distinctly stated in the bill or petition on which the application is founded.
    The receiver of a monied corporatiou, appointed under the 41st section of the title of the revised statutes which directs the manner of proceeding against corporations in law and equity, unless his powers are restricted by the order appointing him, is absolutely vested with all the property and effects of the corporation; and he may dispose thereof, and distribute the proceeds > among the stockholders.
    But a receiver, appointed under the provisions of the 36th section, is a mere common law receiver, to protect the fund during litigation, and he has no powers except such as are conferred by the order appointing him.
    June 21st.
    ' The bill in this cause was filed before the late vice chancellor of the' first circuit. The .complainants were stockholders of the Mercantile Insurance Company of New-York. By their bill they alleged, among other things, that the directors of the company were under the influence and control of Jacob Barker, who was largely indebted to the' com- , pany, and who represented himself to be insolvent. The bill also set forth various acts of the company, and of Jacob Barker, which were alleged td be violations of the charter of the company, or to be injurious to the, interests of the stockholders. Upon presenting the bill to the vice chancellor, and without any notice to the defendants or to the officers of the company, he granted an injunction, restraining the president, directors and other officers of the corporation, and the defendant Barker, from exercising any of the privileges or franchises granted by the charter, and from receiving or paying the debts of the cómpany, or from interfering in any way with its property and effects. The vice chancellor, at the same time, made another order, appointing T. R. Smith receiver of the property and effects of the company ; and directing the officers of the corporation immediately to assign and deliver over such property and effects, and all their books and papers, to the receiver. From these two orders the defendants appealed to the chancellor. -

      D. Selden, for appellants.
    It is not the province of this court to dissolve a corporation for every trifling violation of its charter. This was not its practice under its common law powers ; and the statute law has made no change in this respect; (2 R. S. 463, 4, sect. 40.) The writ of injunction is issued only to an extent commensurate with the existing or apprehended injury, and which is necessary to protect the party applying for it; as, if a corporation should violate the section of its charter which prohibits the 'taking of usurious interest, the court. would not prohibit the corporation from exercising all its powers, but would only restrain it from taking usury ; thus applying a remedy adapted to the injury. But if the corporation should become insolvent, then the court would dissolve it; as a dissolution would then be the appropriate remedy for the protection of its creditors and stockholders. But in this case there is no allegation either in the complainant’s bill or in their affidavits that the Mercantile Insurance Company is either insolvent or in debt. Is this then a case which calls for the interposition of the extraordinary powers of the court 1 An injunction restraining a corporation from exercising its franchises should never be granted, unless in cases of insolvency, or where there is evidence that the directors intend to waste the corporate fund. The statute did not contemplate that the court would, go beyond this. The bill is also defective in not describing the corporate name accuracy.' This is indispensable in bills against corporations. If the least mistake is made in the description it is fatal. But the corporation is not a party to this suit, it not being named as defendant in the bill, and as process is not prayed -against it. Where the complaint is that the. directors of. a corporation or trustees, mismanage or waste the corporate or trust funds, the Corporation or trust will not therefore be disturbed, but only the directors and the trustees will be suspended or removed. But in this case if the bill contained proper allegations against the directors, it would not avail the complainants, as the prayer of process is not against them by their individual names. A receiver is never appointed except in- cases where property belonging to others either is wasted, or there is danger'that it will be. In this bill there are no allegations to lay the foundation for the appointment of a receiver ; the affidavits read on the part of the complainants cannot go beyond the case made by the bill. The affidavit of F. S. Allen must be rejected, as it was sworn to before the complainants solicitor.
    The court can in no case issue an injunction against a corporation, unless it is satisfied that its charter has been violated, or that the corporation is insolvent. (The Attorney General v. The Bank of Chenango, 1 Hopk. Ch. R. 898.) The belief of a party merely as to insolvency is not sufficient; he must state circumstances upon which his belief is founded.
    The ground of the decision in the case of The Attorney General v. The Bank of Columbia, (1 Paige’s Ch. R. 515,) was, that notice had been given of the application to the bank, and the bank not denying the allegations of the attorney general, they were deemed as admitted. (The Bank of Columbia v. The Attorney General, 3 Wend. R. 892, per Sutherland, J.) There was no proof in this case to authorize either the issuing of an injunction or the appointment of a receiver. There is a distinction between the cases calling for an injunction and the appointment of a receiver. When the fund is not in danger a receiver is never appointed.

      ír. C. Bronson, (attorney general,) for the respondents.
    The Mercantile Insurance Company had violated several provisions of its charter, and of other acts binding on the corporation and the injunction was therefore properly granted. The authority to grant the injunction is given by the 39th section of 2 R. S. 463. The bill alleges that the company has exercised banking powers in discounting notes, &c. and has sold and purchased goods, both of which acts are violations of its charter. It was not necessary, under the 40th section of 2 R. S. 464, to set out the particular instruments and the times and places in reference to these violations. It was sufficient to aver the facts without detailing the evidence of the facts. The 40th section of 2 R. S. 464, merely provides that due proof be made of the facts required in the 39th section to authorize the issuing of an injunction; and in the bill it is sufficient to aver that the acts prohibited in the 89th section have been committed. The Mercantile Insurance Company is also prohibited by its charter, except for the purpose of vesting its capital or funds, from buying and selling stock or any funded debt, or from dealing in the business of a stock or exchange broker. This provision has also been violated. The legislature having prescribed in what manner the corporation may vest its capital and funds, the corporation is not at liberty to depart from the mode prescribed. The corporation has also violated the 2d section of the 4th title of the 18th chapter of the 1st part of the revised statutes, (1 R. S. 601,) by buying in a part of its stock, which operates as a reduction of its capital. This section provides that it shall not be lawful for the directors of any incorporated company to divide, withdraw, or in any way to pay to the stockholders, or to any of them, any part of the capital stock of such company, or to reduce the said capital stock, without the consent of the legislature. A corporation cannot take a transfer of its stock, and keep it alive a such. The capital stock is the funds of the company. If the company has paid out such funds in the purchase of its stock, this extinguishes the stock, and amounts to a reduction of the capital. Where there is only a trifling violation of a charter, and neither the public nor individuals are injured by it, the court probably would not interfere to dissolve the corporation; but if any injury resulted from such violation, the court will assume j.urisdiction of the case..
    No person who has any real inteiest in this corporation, desires its continuance. The whole of Barker’s stock is hypothecated at its par value to the company. If the company should be dissolved, Barker would .have no interest in the corporate funds. The stock of the company cannot be worth par, as many large debts which are due it are desperate. Can it be for the interest of those whose stock is not hypothecated, to continue the company, since all the stock of those persons who have, the control is hypothecated to the company for more than, its value1? The stockholders who are interested, in fact wish a dissolution of the company. The ' misnomer of the corporation can ■ only be objected to by a plea in abatement. The granting of the injunction, and the" appointment of a receiver in this case; was a proper exercise of the discretion vested in the vice chancellor.

      S. Sherwood, same side.
    The bill seeks for relief under the statute, as well as at the common law. A receiver is appointed wherever there is some existing evil. (Middleton v. Dodwell, 13 Ves. R. 266. Lloyd v. Passingham, 16 id. 59. Duckworth v. Trafford, 18 id. 283. Scott v. Becher and others, 4 Price’s Exch. R. 346. Vann v. Barnett, 2 Brown’s Ch. Cas. 157. Berney v. Sewall, 1 Jac. & Walk. Ch. R. 627. Hovendon’s Sup. to Ves. 500, n. 3.) From these authorities it appears that the court appoints a receiver, whenever the fund is in danger, upon affidavit before answer, and without notice to the opposite party. If the court then does interfere, without giving notice to the adverse party,' the only question remaining is, is the case sufficiently made out to authorize the appointment of a receiver, without notice to the persons having possession of the property.- . The case shows that the business of several companies has been transacted together, and all under the direction- of J. Barker ;■ that the whole is mixed up and in confusion ; that- J. Barker is insolvent and largely in debt to this company; and strong reasons are shown for supposing that this company is on the way to ruin. In the city of New-York receivers have generally been appointed without notice. (Boyd, v. Murray, 3 John. Ch. R. 48.) The Mercantile Insurance Company is not authorized to buy and sell goods, &c. or to engage in the trade or business of an exchange or stock broker, or in the purchase or sale of any stock or funded debt, &c. • (Laws of N. Y. of 1818, p. 92, sec. 10.) Dealing in stocks is hazardous. The court will not be inclined to extend the powers of the company in this respect. The company has no authority to purchase or hold local bank and insurance stock. We show a strong case of misapplication of funds, besides several violations of the charter.

      B. F. Butler, in reply.
    The court of chancery, before the statute of 1825, (Laws of N. Y. sess. 48, p. 448,) has no power to dissolve a corporation. So far as the bill is filed against the corporation, the case must be brought within the provisions of the statute, there being no remedy at common law. (2 Kent’s Com. 244, 252.) The court, by virtue of its general jurisdiction, may interfere against directors as trustees to protect the stockholders, and might, with this view, appoint a receiver ; but then, to authorize it to do this, the bill must be filed against the directors by name. (Ogden v. Kip, 6 John. Ch. R. 180.) This bill is defective in not stating correctly the style and name of the corporation. This was necessary. (Bank of Utica v. Smally, 2 Cowen’s R. 770.) The affidavit taken before the complainants’ solicitor cannot be read. (In the matter of Hogan, 3 Atk. R. 813.) The name of the solicitor and commissioner being the same, the presumption is that it is the same person; and the onus probandi that they are not the same is on the other side. There is principle involved in this objection, as the legislature have prohibited a person from acting as solicitor or counsel and as master in the same suit. The charter of the Mercantile Insurance Company is a peculiar one. It contains two uncommon provisions; the one fixing the number of directors at 21, and the other requiring each director to hold 30 shares of stock.
    Such, an extraordinary exercise of power as that in this case, against directors having such an extent of interest; is at least of very uncommon occurrence. The names of the directors are-not given in the bill. .There is no charge of insolvency against them. ■ And yet an injunction has been grant*, ed and a receiver appointed, without notice to the company or the directors, upon the. alleged ground that it would have been unsafe to have given such notice. Although the order was-for an injunction against the directors, yet, if it affects the corporation, the latter can appeal, and upon the appeal, may show that the order was erroneous. The order is erroneous, as there is no prayer -in the bill for an injunction against the directors. The order was improper also, as the court had no power, either under the statute or at common law, to grant an injunction against the directors, if there was no prayer in the- bill for this writ against, the corporation. And to authorize a prayer for the issuing of an injunction against the directors, tlley must be named in the bill. If a receiver is prayed for in the bill, it is of'the property and effects of the company; and the order for a receiver, as against the company, is erroneous, as the company is not a party to the suit, it not being named a.s'such in the bill, and no subpoena being prayed for against it, which are the tests which determine who are the parties to the suit. If damages shoúld be awarded in consequence of this order, they would be awarded to.the directors and not to the company. The corporation is not calléd upon in the bill to answer; nor is there a charge of combination against-it. The'bill requires the defendants to answer upon their corporal oaths. This is not the usual prayer against corporations. The prayer is that they answer under their common seal. There was evidently no intention on the part of the complainants that the corporation should answer. The objection here is not one of misomer' merely, but also that the complainants, having the true name of the corporation before them, pray a subpoena only against the directors. Accuracy in giving the name of a corporation is important, as there are many names of corporations almost identical. As the complainants ask for the interposition of the highest powers of the court, a knowledge of the extent of their interest in the corporation is necessary to a proper exercise of the discretion vested in the court in such cases. Whether the complainants own 9000 shares, or only one share, would make a material difference in the exercise of this descretion • but as the bill is silent on the subject of the amount of stock held by the complainants, we have the right to contend that they hold only one share, as the presumption is that they framed their bill as "favorably to themselves as their case would admit. The complainants do not charge in their bill that the company is insolvent; nor even that they believe J* Barker is insolvent. All the allegations in the bill are founded upon information and belief. The complainants are not in a situation to acquire the best information ; the reside in different counties, and two of them are females. Not one of the large stockholders in the city of New-York has united as complainant. These circumstances should have been considered by the vice chancellor, and should have prevailed with him not to grant an injunction, or appoint a receiver without notice to the adverse party. Here was clearly not a sound exercise of the discretion vested in the court. And here was a delay of 20 days, from the time the bill was sworn to, to the time the orders for an injunction and receiver were granted. Why this delay, if the stock and funds of this company were in such imminent danger as is now pretended. If notice had been given to the adverse party, all these considerations would have been pressed upon the vice chancellor.
    If it had been intended that the court should interfere by virtue of its general jurisdiction against the directors as trustees, the directors should have been brought before the court by name. The corporation is not a trustee, as the stockholders constitute the corporation; and the absurdity would then exist of the corporation suing itself. The prayer for relief follows, and is in conjunction with the prayer for a receiver. Where there is a prayer for general, and also for particular relief, no relief can be granted under the prayer for general, unless it is consistent with the prayer for particular relief, as the former is anciliary to the latter. The appointment of a receiver of a corporation is a disfranchisement of its officers, and works, a dissolution of the corporation. This was .not authorized by the prayer of the bill; it is the prayer which furnishes the test, as to the ground upon which the bill is filed. In the case of The Attorney General v. The Utica Insurance Company, (2 John. Ch. R. 371,) the attorney general filed an information against the Utica Insurance Company, which prayed for an injunction to prohibit the company from exercising banking powers. The Chancellor decided that he had no power by virtue of his general jurisdiction to grant the injunction. The law so remained until the act of 1825, (sess. 48, Laws of N. Y. p. 448,) was passed; but this act was only intended to reach cases of insolvency in corporations. Under this act the corporate funds must, be in danger to authorize the interference of the court; and this, whether the bill be filed by the attorney general, a creditor, or a stock-holder. The evident object of this act was to protect and preserve the corporate funds for the creditors and stock-holders. The object of all laws is to prevent the mischief intended to be remedied,, with as little injury to others as the circumstances will admit. L Where a receiver is appointed'under the 39th section, (2 R. S. 463,) the authority with which, he is vested under the third article of the same title amounts to a judgment of forfeiture against the corporation, as perfect and effectual as if given upon an information in the nature of a quo warranto. This result could hot have been the intention of the legislature. The attorney general might have filed his bill either under the 31st or 33d sections, (2 R. S. 462, 3;) and a creditor or an officer of the corporation might have filed a bill under the 33d section, which is a new section, and extends the jurisdiction of the, court. The 33d section is extremely remedial in its provisions; but in this case the attorney general has not filed his bill under the 31st section: nor was the bill filed under- the 33d section; under either of which sections, perfect remedies could have been obtained for the alleged mischief, without working the ruin of the corporation. But the most severe remedy is resorted to ; one which can only be obtained by a destruction of the corporation. This leads to án inquiry into the motives of the complainants. They say they fear the corporate funds are in danger; but if they are, why adopt the remedy which goes beyond the evil apprehended ? Under the 39th section the bill might have been filed for the causes there specified. But the bill is so ambiguously and artfully drawn, and so involved, that if you construe the allegations therein of forfeiture, by the rule reddenda singula et singulis, it will be found that some one or other of the several corporations and defendants named in the bill could exercise some one or other of the powers, which it is contended are not possessed by the Mercantile Insurance Company. There is no specific charge, eo nomine, in the bill against this company of any single violation of its charter. Great certainty and precision are always required in making allegations of this kind against corporations. (The Attorney General v. The Bank of Chenango, 1 Hopk. 598. The Attorney General v. Bank of Columbia, 1 Paige’s R. 515. Same held in Court of Errors.) The complainant must allege and set out the circumstances so as to show the court there has been a violation of the charter; at least, the bill must distinctly charge that the corporation has violated its charter, and specify particularly wherein, so as fully to apprise the adverse party of the particular violations for which the bill was filed. The proofs in support of the bill must go to the facts and circumstances which constitute the violations. An allegation that the complainant believes the facts and circumstances charged as violations of the charter to be true, is not sufficient; the court must have, under the 39th section of the statute, due proof of the facts. Upon the trial of an information, proof that the corporation did, on a particular day, violate its charter, would not be sufficient, but the witness must state the particular acts, and the court will judge whether they amount to a violation of the charter or not. It is not sufficient that the witness is satisfied the charter has been violated; the court must also be satisfied. The other charges of the violation of the charter contained in the Ml, and not before adverted to, are not brought home to> the present directors of the Mercantile Insurance Company, The court cannot discreetly exercise the power of appointing a receiver, unless the present officers of the corporation are un^t to manage its affairs. Suppose the present officers are pure and faithful, and the violations, of the charter were committed during the management of their predecessors, would the court take the management out of their hands 1 Certainly they would be more fit and com peten), to perform the duties of directors than a stranger.; and by permitting them to continue as directors, the expense of commissions would be saved.' This information was necessary for the court, before fit could discreetly exercise its power of appointing a receiver ; but the affidavits and proofs do hot ’sustain the allegations in the bill.
    The Mercantile Insurance Company can take securities upon the sale of real estate, received in payment, of debts, by force of the words, “ or other personal property,” Laws of 1818, sec. 10, p. 92.) It can hold stock, provided it is for the purpose of investing any part of its capital stock or funds, or of the proceeds of the sale of real estate-; but even if it were doubtful whether the company had this .power, there is a decisive objection to the interference of th.e court by injunction, and the appointment of a receiver; as the affidavits do not prove that the complainants have engaged in the business of exchange or stock brokers. A broker is one who stands between the buyer ’ and seller. If he owns the stock which he buys and sells, he is not a broker. Here, the company purchased- stock for itself, and not • for others. The influence of such.a próceéding upon the prosperity of the company is a different question from that of forfeiture.. - There is no prohibition against, this - company’s buying in its own stock, and thereby .reducing its capital. The' act of 1825 is the first statute which contains this prohibition; but- it is questionable whether this law applies to previous corporations. The fact of' the Mercantile Insurance Company’s buying in its own stock is however’ immaterial in this case, as it is not made a cause of forfeiture in the bill. There was in fact no reduction, of capital; and as creditors have not' been injured, there can be no ground of complainant; and if there are still funds sufficient to satisfy the creditors of the corporation, there is no ground for the interference of the court.
   The Chancellor.

I shall not attempt to examine or express any opinion upon the merits of this case as stated ín the complainant’s bill; because upon examination of the objections which have been raised as to the form arid regularity of the proceedings before the vice chancellor, I find those objections insurmountable.

The first objection is, that although the order appointing a receiver purports to have been entered in a suit against M The Mercantile Insurance Company of New-York,” under which order the appellants have been deprived of the possession of their property, they were not in fact parties defendant in the bill; as the prayer of process 'Was only against the officers of the corporation. The name of the corporation-is as'before stated. But the prayer for process is that the subpoena may be directed to the president and directors of the said company. This was undoubtedly owing to the mistake of the solicitor who drew the bill; and who probably did not intend to make the president or directors, but only the corporation and Jacob Barker, parties to the suit. The , same mistake exists as to the prayer for the injunction, and is also carried into the order granting the injunction; so that the injunction, in fact, is neither against the corporation nor its officers by their proper names. ■ As this objection is merely formal, I should not feel disposed to sustain it, if the difficulty can be obviated by an amendment. As it now stands, it may deprive the appellants of a substantial right; arid it is somewhat doubtful whether they have the power to answer this bill. It neither prays process against the corporation, nor calls upon them to answer; for, by another singular oversight of the solicitor, .that part of the bill merely prays that the confederates may answer upon their corporal oaths ; whereas the officers of the corporation, and not the company, are charged with confederating; and they only could • put in their answer on their oaths. It is well settled that no persons are parties as defendants in a bill in chancery, except those against whom process is prayed, of who are specifically named and described as defendants in the bill. ( 1 Marsh. Kent. R. 594. 2 John. Ch. R. 245. 2 Dicken’s R. 707.) In- Elmendorf v. Delancy, (1 Hopk. R. 555,) Chancellor Sandford says : When it is' uncertain who are complainants, or who are the persons called to answer, the' suit is fundamentally defective; and. if the parties are not clearly designated, it is the fault of him who institutes the suit.” In answer'to this objection, it is suggested by the respondents’ counsel that it is a mere misnomer1 of the corporation, and can only be taken advantage of by plea in abatement. It cannot, however, in this case be considered a misnomer. The name' of the corporation and "the substance of the charter are distinctly stated in the commencement of the bill, and the process is then prayed against the officers only. Besides, the appellants never had an opportunity to make the objection by plea in abatement, or in any other form. As the true name of the corporation was stated, the objection appeared on the face of the bill, and no plea was necessary to bring the fact to the notice of the court. '

Another fatal objection to the regularity of these proceedings is, that the appellants were deprived of the possession of their property, and divested of all their corporate rights, without having an opportunity of being heard, and without any sufficient cause for such a summary proceeding. By the settled practice of the court in ordinary suits, a receiver cannot .be appointed, ex parte, before the defendant has had an opportunity to be heard in relation to his rights, except in those cases where he is out of the jurisdiction of the court or cannot be found ; or where, for some other reason, it becomes absolutely necessary for the court to interfere, before there is timé to give notice to the opposite party, to prevent the destruction or loss of property. Formerly it was never done until after answer: (Vann v. Barnett, 2 Bro. Ch. Cas. 157. Maguire v. Allen, 1 Ball & Beat. 75. Tanfield v. Irvine, 2 Russ. R. 149. Coward v. Chadwick, id. 150, note. People v. Norton, 1 Paige, 17.) In every case where the court is asked to deprive the defendant of the possession of his property without a hearing, or an opportunity to oppose the' application,' the particular facts and circumstances which render such a summary proceeding proper, should be set forth in the bill or petition on which such application is founded, Oglevie’s affidavit in this case, that he was satisfied of the necessity of such a proceeding, was not sufficient. He should have stated the facts on which his opinion was founded, to enable the court to judge of its' correctness. There are 21 directors of this company, each of whom, by the provisions of the charter, must be a resident of this state, ánd an owner of $2,500 of the stock. It is not alleged that a majority, or even any considerable number of these directors were insolvent or destitute of character. And it would be felony in any of the individual officers to embezzle or spirit away the property of the institution, without the consent of the board of directors. (2 R. S. 678, § 59.) The court ought therefore to have something more than the mere opinion of a witness, however respectable, to induce it to suppose such a direction would subject themselves to punishment for the violation of an order of the court, or that the officers of the company would be guilty of felony, by embezzling the property without the consent of the directors, if the usual course of an order to show cause at a short day had been taken, and a temporary injunction in the mean time granted. That practice was adopted by the chancellor in the case of The Franklin Bank, (1 Paige’s R. 85,) and the same course has been pursued by him in all subsequent cases. This should have been considered by the vice chancellor as the correct practice, unless special circumstances rendered a different course of proceeding proper.

There is another reason which rendered the ex parte proceeding in this case still more objectionable. This is a bill filed by stockholders to wind up the concerns of the corporation, on the ground of an alleged violation of the charter. In' this respect it differs materially from the bills which have frequently been exhibited in this court by stockholders, against the individual directors of the company, to restrain them from violating their trust And it can therefore only be sustained as a statutory proceeding under the 39th section of that title of the revised statutes which directs the manner of proceeding against corporations.at law and in equity. (2 R. S. 463.) That is the only provision I have been able to find which authorizes a proceeding by- a stockholder to enforce forfeiture of the franchises of.the corporation, and to compel a distribut,on °f the funds. Although the 41st section authorizes the court in any stage of the proceedings, upon an application under that provision of the státute, to appoint a receiver of the property and.effects of the corporation, it could not have been supposed by the legislature that the court would appoint such receiver, with the powers conferred upon him by the next section, without any notice of the application to the corporation or its officers. The.receiver, appointed under' that part of the revised statutes, unless his powers are restricted and controlled by the order of the. court, is ..absolutely vested with all the property and effects of the corporation ; and he has full power to sell and dispose of the whole, at his discretion, and to distribute the proceeds among the stockholders, after paying the debts owing by the com pany. It is in effect a final order in the cause ; and unless altered or revoked, operates as a virtual dissolution of the corporation. It is not a common law receivership to protect the fund pending the litigation ; but the receiver is a statutory assignee, vested with nearly all the powers and Authority of the assignee of an insolvent, debtor. (2 R. S. 464, § 42 ; 469, § 67, &cc.) It would therefore, be a violation of one of' the fundamental principles of justice, to appoint such a receiver, ■ without any restriction of his powers, on an ex parte application ; and thus to condemn and deprive a company of. its chartered privileges unheard. A different'kind of receivership is authorized by the 36th section of the same title, on the application of a judgment creditor. (2 R. S. 463.) That is the same kind of receiver» which was authorized by the 17th section of the act of 1825, on the application of the attorney general, or of any creditor of the corporation. (Laws of 1825, p. 453.) Those wpre strictly common law receivers ; such as are usually appointed by this court in suits between party and party, and to protect the fund during the litiga-. tion. They have no powers except such' as are conferred upon them by the order. for their appointment, and the course and practice of the court.

The vice chancellor erred in granting a general injunction on this bill, and in appointing a receiver, without n.otice to the corporation; both orders must therefore be reversed and vacated, with costs on the appeal therefrom, to be paid by the respondents, to the solicitor of the appellants. The proceedings must be remitted back to the vice chancellor of the first circuit, with permission to the complainants to apply to him for leave to amend their bill, so as to make the corporation defendants therein, and otherwise as they may be advised, upon due notice of such application to the solicitiors of the appellants and* of Jacob Barker. Upon such amendment being allowed and made, an order may be entered, directing the defendants to show cause before the vice chancellor, at such time and upon such notice as he shall direct, why a general or other injunction should not be granted, and a receiver be appointed, either with the general powers conferred by the statute, or subject to such restrictions as to the vice chancellor shall seem proper ; and that in the mean time a temporary injunc-' tion issue, restraining the defendants and the officers of the company from buying or selling any stocks, or doing any act in violation of the charter of the company, and from doing such other acts as may, in the opinion of the vice chancellor, be proper to restrain them from doing, pending the application before him.

Thomas R. Smith, the receiver appointed in this cause by the vice chancellor, must also forthwith deliver over to the assistant register of this court, as clerk of the vice chancellor of the first circuit, all the -books and vouchers, monies, property and effects of the corporation, which have come to his. hands, or to the hands of any of his attornies, servants or agents; and the assistant register must deposit the same in • the bank of the Manhattan company, subject to the further order and direction of the vice chancellor. And they are to be delivered up to the officers of the corporation, unless the complainants shall procure their bill to be amended, and obtain an order to show cause, dec. within three weeks after notice of this decision. Or, if the directors of the corporation, or the major part of them, shall give sufficient security, to the satisfaction of the vice chancellor, to abide the final order and decree "which may be made in this cause, and to account for the property and effects of the company as this court shall direct, the" books, property and effects, the monies of the corporation in the hands of the, receiver, are to be immediately restored to such directors, or to their agents or servants, for the use of the company.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Wood vs. Wood.
    A feme covert cannot file a bill against her husband in her own name, except in the single case of a bill to obtain a divorce on the ground of adultery.
    A bill to obtain a separation merely must. be filed in the name of the next • friend of the wife ; and if it is not so filed, the defendant may demur."
    No allowance for costs or alimony can be made to the wife, if it appears upon the facé of her. bill that it is improperly filed, and that she can obtain no decree thereon.,
    Where the wife has no separate estate, no decree can be made against her in favor of her hupband for costs. • ,
    June 21st.
    The bill in this case was filed against the husband for "a separation, on the alleged ground of. cruel treatment. The defendant demurred to the bill on áccount of its having been, exhibited by the wife in person, without a next friend, as réquired by the 163d rule of this court. This objection. was urged in opposition to an application to the late vice chancellor of the first circuit for an allowance to the wife by way of alimony. He overruled the objection, and ordered the defendant to pay her one hundred dollars ; and referred it. to - a master, to report what'further sum he ought to advance towards the expenses of the suit, and to fix a weekly or month; ly allowance, by way of alimony, pending the litigation. ' From this decision the husband appealed to the'Chancellor.
    W. Sillimim,’for the appellant.
    The complainant has filed her. bill in this suit alone," and not by any person as her -next friend, nor is any person made responsible for the costs which may be awarded to the defendant. This is a fatal objection to the bill ; arid the defendant' may take advantage of it by demurrer.. Cooper, in his. treaties on equity pleading, page, 163, says: “If a married woman exhibits a bill without naming a next friend, and the incapacity appears on the face of the bill, the defendant must take advantage of it on demurrer.”
    The practice of this court, as ithas'existed for years, and is sanctioned by the 163d rule of this court, provides that “No bill shall be filed in the name of a feme covert to obtain a decree for a separation or limited divorce, unless the suit is pro-, secuted by some responsible person as the next friend of the ' complainant who shall be responsible for such costs as may be awarded by the court.” A bill which is filed irregularly, and contrary to the plain law and practice of the court, cannot furnish a’substantial foundation for any order.
    The authorities above mentioned were cited on the argument before the vice chancellor. By the common law, if a wife improperly abandons her husband, and refuses to return to his house, he is not liable for her support. The defendant’s affidavit, and that of a disinterested person shew that the complainant’s absence is owing to her own fault, consequently she ought not to be allowed. to absord the residue of her husband’s slender means in the manner which she proposes, . which will operate as a special premium for her abandonment of duty, and gross misconduct. There is no allegation in the bill that the children have been, or will be neglected or ill treated by their father, and the mother should not be enabled, through the intervention of this court, to compel him to support them in a manner too expensive for his means. If he refuses to support them, it is, (in this stage of the proceedings,) a subject proper for the attention of the overseers of the poor, rather than of this court. The vice chancellor’s order sweeps away the entire means of the defendant, and then refers it to a master, to say hovv much more he shall give. The latter part of the order seems unnecessary, if not oppressive. The defendant is prohibited by the injunction, (which, at the argument, was admitted to be according to the prayer of the bill,) from disposing of any part of his estate, and yet the order requires him to pay one hundred dollars. He manifestly cannot do this without a breach of the injunction, and a contempt of the.court.

      The only serious question' in the case is; how is the defendant to be paid his costs 1 From his wife he cannot obtain them. If a solicitor files a bill for a non-resident complainant without security for costs first given, he is personally responsible ; although in such a case the defendant’s costs might probably .be obtained from the" complainant. In this case it is impossible for the solicitor for the defendant to obtain costs from the complainant. He should therefore be entitled to recover them from the complainant’s solicitor, upon the ground that the bill was filed irregularly, and against the express' prohibition of the rules of the court.

      H. W. Warner> for the respondent.
    The appeal is from that part df the order which gives the wife and her three infant children, (who have been more than one year without the least assistance from the husband and father,) the sum of $100 towards their necessary máinfenance, and refers it to a master to inquire what further allowance ought, to be made. Does süch a. case admit a question ?■ The defendant’s counsel rely on a supposed formal irregularity in the draft of the bill, inasmuch as it is not filed in the name of a next, friend. • ' 1, Suppose, then; the bill ought, in this respect, to be amended ;■ is that a reason why the wife and children should be left to perish ? Will the idea be entertained for a moment ? 2. Again, • the defendant ' has demurred to the bill for the cause above referred to respecting its form. Will' the court countenance the present attempt to anticipate the argument of the demurrer ? Will they not leave the party to try the question in the way he has selected for the purpose ? But it has been decided that- the pendency of a demurrer is no objection to tin order for maintaining the wife in the mean time. Whenever the demurrer shall be heard, I shall submit, with great respect, -that the.bill is right, at least on demurrer ; and that if any security for costs is demandable, a. special motion is the proper means of obtaining it. 3. But' the defendant’s affidavits represents that the wife too has been to blame; that the husband never used violence • upon her, till the month of April, 1830; and that his means are small, &e. As to the défendant’s poverty, he admits' a salary of $300 a year; and We ask, in the first instance, $100 only, and after that, an inquiry. Can this be wrong ? And as to the rest of the matters of the affidavit, they belong to the merits of the controversy, and are to be discussed on pleadings and proofs at the hearing. Meantime, however, the mother and her infant children must live.
   The Chancellor.

A feme covert has no right to file a bill against her husband without the interposition of a next friend, who will be answerable for the costs, in case the suit is instituted without any reasonable cause, If the objection appears on the face of the bill, it is a good cause of demurrer; and the objection goes to the whole bill. (Willis’ Eq. Pl. 5, n. s. Mitford, 153. Cooper, 163.) The statute has authorized her, in a suit for a divorce which is to dissolve the marriage contract, to institute the same in her own name. But by the revised statutes this power is only given under the article which relates to divorces on the grounds of adultery. (2 R. S. 144, art. 3, § 39.) This section, which authorizes the defendant to answer without, oath, was never intended to apply to bills filed tinder the second or fourth articles. Nor was the 163rd rule intended to create any new disqualification, but merely to declare the existing law of the court,' and to call the attention of the bar to the distinction which had been made by the revised statutes. As it appeared on the face of the proceedings that this bill was irregularly and improperly filed in the name of the wife alone, the defendant ought not to have been subjected either to costs or expense, until the irregularity was corrected by an amendment of the bill or otherwise. In the case of Mix v. Mix, (1 John. Ch. R. 108,) it was at least doubtful whether the demurrer could be sustained; and for that reason a small allowance was made for the wife until that question could be decided. Here the bill is filed not only against the settled law of the court, but in direct violation of one of its standing rules. It would therefore be unreasonable to compel the defendant to furnish the means of carrying on a suit which the court must see cannot be sustained.

The order of the vice chancellor must therefore be reversed ; but without prejudice to the right of the complainant to renew the application, if her bill shall be amended by inserting the name of a responsible person as her next friend. There being no evidence that the wife has any separate estate, no 'costs can be awarded against her on this appeal. The appellant’s counsel ask for costs, to be paid by the soli" citor, but I know of no principle which can authorize an appellate court to charge the solicitor of the respondent with costs produced by the mistake of the judge whose decision is reversed.

         See Lube’s Equity Pleading 25.


text:
    S. Rogers and others vs. H. Rogers and others.
    On an application for a relaxation, where the pleadings were before the taxing officer, the court will presume the number of folios were correctly taxed, unless there is an affidavit of a mistake in that respect.
    If counsel, other than the solicitor, is actually employed in the cause, retaining fees, both for solicitor and counsel, are taxable, although the name of the solicitor only is subscribed to the pleadings as counsel.
    Instructions to search for judgments, &c. are only taxable in mortgage cases, and others of that description, where, by the practice of the court, it is necessary to make all the incumbrancers parties to the suit.
    Where deeds and other writings or parts thereof are incorporated into pleadings they cannot be charged as a part of the draft of such proceedings.
    A copy of the subpoena to annex to the affidavit of service is unnecessary, and not taxable; the original subpoena should be annexed.
    Three folios are allowed for the draft and engrossments of subpoenas for , witnesses ; and two for the draft and copies of subpoena tickets.
    Twelve and a half cents is the proper allowance for serving a subpoena on a witness in chancery.
    A written request to the register to enter an order is in the nature of a precipe, and cannot be taxed under the revised statutes.
    Where a witness is directed to be examined on written interrogatories, an engrossed copy of the interrogatories to be filed with the testimony, is taxable.
    It is not necessary, where the copy of a pleading is served on the adverse party, to give him notice that it is a copy; and no allowance can be made on taxation for such notice.
    All charges for notices not required by the rules and practice of the court, should be rejected by the taxing officers as useless and unnecessary services.
    An affidavit of serving a notice of the order to answer is taxable, if actually made, although it is afterwards rendered unnecessary by the putting in of the answer.

      But an affidavit of service of a notice of the examination of a witness is not taxable, unless it becomes necessary to make and use such an affidavit on some special application to the court
    Where the examination of several witnesses is noticed for the same time, only one notice is necessary; and a notice of the examination of a witness, for the examiner, is not taxable.
    Where the whole travel of a witness in going and returning is less than fifteen miles no allowance for travel can be made, unless it appears that he was obliged to come so early, or was detained so late, that he could not come and return on the day of his attendance. If the whole distance both ways is over fifteen miles and under thirty, one day should be allowed for travel; and if over fifteen miles each way, one day should be allowed for the witness to come, and one to return, independent of the time he is detained for examination.
    Charges for disbursements to witnesses, beyond the amount of their per diem allowance, are not taxable against the adverse party.
    Where travelling fees are claimed, the affidavit should state the probable distance travelled by each witness.
    Where depositions are drawn by the solicitor, under a stipulation between the parties, no higher charge can be allowed for the draft or engrossment thereof than if the service had been performed by the proper officer of the court.
    A copy of the pleadings and depositions for the use of counsel is not taxable against the adverse party; the abbreviation of the pleadings and depositions for the use of counsel is all that can be allowed.
    Where a cause, at the hearing, is directed to stand over for want of parties, if the defendant has not made the objection previous to that time, neither party ought to have costs, as against the other, for the extra expense occasioned by that proceeding.
    Where a cause stood over at the hearing, with leave to file a supplemental bill, and nothing was said as to the costs ; and a subsequent decree in the cause directed the defendant to pay all the complainant’s costs not previously disposed of, held, that the costs of the supplemental bill were embraced by the decree.
    Where a party successfully opposes a motion, and nothing is said about costs in the order denying the application, he is entitled to his costs of opposing, as costs in the cause, if he obtains a decree for costs.
    The charge for counsel attending prepared for argument at a term when the cause was not reached on the calendar, is not provided for by the chancery fee bill, and cannot be allowed.
    Where postage or other disbursements are charged, each item of such disbursements, and the occasion and circumstances of the expenditure, should be particularly specified in the bill of costs, and sworn to.
    " It is the duty of the taxing officer to see that the several provisions of the revised statutes relative to the taxation of costs are complied with, whether the taxation is opposed or not.
    The charges for attending the master to obtain his signature to a summons, and for attending to obtain his report after it has been completed, are not provided for by the fee bill, and are not taxable.

      The solicitor cannot, be allowed for. an engrossed copy of charges or discharges before the master; nor for engrossing objections to the draft of the master’s report. The allowance for engrossed copies to file, applies only to copies of such papéis as are directly or ultimately to be filed in the register’s or clerk’s office. . -
    It is the duty of a party who is dissatisfied with the taxation, as to particular t items in the bill of costs, to bring the questions as to such items directly before the court by a motion on his part, although the adverse party applies for a retaxation as to other items.
    The petition, or other, papers, on which an application for a relaxation is founded, should distinctly refer to, or point out, the particular items or parts of the bill of costs, as to which a relaxation is Sought.

      Where a motion is made- or opposed by .counsel, other than the solicitor on record, the attendance fee of the solicitor is taxable although he did not attend in person; but where the solicitor makes or opposes the motion 'himself, and is allowed therefor as counsel, he cannot charge an attendance fee as solicitor1 also. ' '
    No allowance can be made to the solicitor for attending the hearing of a cal- • endar cause, unless he attends in person.
    A charge for instructions as to the manner of serving the subpoena on a defendant is not taxable; and no allowance for serving the subpoena can be made, by way of disbursement, beyond the sum fixed by the fee bill.
    The charge for perusing amending and • signing..pleadings, can only be allowed when the service is actually performed by counsel other than the solicitor in the cause; and where the name of the solicitor alone is signed to the engrossed pleadings as counsel, the presumption is that no other counsel perused and signed the drafts.
    The drafts of pleadings in litigated causes should be submitted to the actual examination of the senior counsel, before they are engrossed and filed.
    The charge for perusing and settling a decree applies to a final decree only, and it cannot be allowed on a mere decretal order. Practice as to settling decrees and special orders.
    The rule requiring an affidavit of regularity, on bills taken as confessed, applies to mortgage cases only. The affidavit is proper, however, in other cases of bills taken as confessed, under the revised statutes, to enable the court to ascertain whether the defendants have been personally served with process, or whether they are proceeded against as absentees; and a short affidavit, not exceeding two or three folios, may be allowed on taxation, if it is actually made and used. '

      Copies of the opinion of the court, furnished to the master on a reference, are not taxable. '
    The solicitor is entitled to charge for a notice of the taxation of his costs, ip’ addition to the specific allowance,- in the fee bill, for a copy of the bill of costs' to be delivered to the adverse party with such notice.
    If the taxing officer, on the taxation of a bill of costs, has doubts as to the. correctness of a charge, he should reject it.
    The taxation of items for services not performed by the solicitor, or where the number of folios are overcharged, will not protect him from the penalty prescribed by the statute for unlawfully demanding or receiving fees for such services.

      This was an application, on the part of the defendant H. Rogers, to set aside the execution issued in this suit for irregularity, or to stay the proceedings thereon; and for a relaxation of the costs. Both parties were dissatisfied with the taxation, and a conditional arrangement was entered into to bring the several questions before the court. This arrangement however was not carried into effect. And the complainant’s ■ solicitor after waiting some time, and receiving no notice of an intention on the part of the defendant to appeal from the decision of the master, finally concluded to submit to the taxation himself as it stood. He procured the decree to be enrolled, and issued his execution. The decree directed H. Rogers to pay into court the amount reported due, within thirty days after notice of the confirmation of the report, or that the complainants have execution for the amount. He paid in the amount, but gave no notice thereof to the complainants’ solicitor. This fact being unknown to the solicitor, and having been inadvertently overlooked by the register, the execution was taken out for the amount reported due as well as the costs, and was placed in the hands of the sheriff. As soon as the complainant’s solicitor discovered the money had been paid in, he gave directions to the sheriff" to deduct that amount from the execution, and sent notice thereof to the defendants’ solicitor. In the mean time the latter had applied to the chancellor, and obtained an order to stay the proceedings on the execution, and also an order to show cause, &c. with a view to a relaxation of the costs, and to have the execution set aside or corrected.

      L. Waite 4a S. Stevens, for the complainants.
    J. Lansing, for H. Rogers.
   The Chancellor.

Under the decree of September, 1828, it would have been proper for the defendant H. Rogers to have given notice to the complainants’ solicitor that the money was paid into court. The money having been actually paid, however, before the execution issued, and being deposited in the office where the decree was enrolled, if it had not been overlooked by the register, he would not have included that a-amount in the execution. Both parties appear to have acted under a mistake or misapprehension; and no order is now necessary as to the money paid into court, and neither party ' ought to be1 charged with the costs in relation to that part of the application.

With the exception of one or two items, which I shall hereafter notice, the defendants’ solicitor seems to have objected before the taxing officer in the proper form, so as .to call the attention of the officer, ■ and of the solicitor for the complainants, to the specific objections which are now made to the several items complained of as improperly taxed. As to most of those items, the affidavits and evidence produced be-1 fore the-master Were sufficient, on the'part of the complain- . ants, to establish the fact that the services had been performed, and that the number of folios were correctly charged. As the pleadings were produced on the taxation, if the complainants’ solicitor had made a mistake in his affidavit as to the number of folios, the defendants’ solicitor had the means of correcting such mistake' on the spot. Without an affidavit or some other evidence .óf mistake, this court will now take it for ■ granted that' the number of folios was right, and will not take upon itself the labor, of counting these voluminous pleadings. The questions were fairly raised before the master, as to the legality of particular items, and the propriety1 qf their allowance, under circumstances which were undisputed, ánd if he has erred in the taxation, this-court must cor: rect his decision.'1 ■ /

■ The first objection is, that the complainant’s solicitor Was not entitled , to - a retaining , fee, inasmuch as he signed the bill both as solicitor and counsel and a retaining fee for counsel is allowed. The affidavit showed that three counsel at least, other than the solicitor, were employed in the progress of the cause; and two of them were retained generally as counsel. Retaining fees, both for solicitor and counsel, were therefore properly taxed, although the solicitor on record alone signed the bill as counsel. The - objection to the charges for instructions to the clerks of the supreme court and' to the clerk of the county to search for judgments, appears to . have been well taken. ■ In those cases where by the practice of .the court it is necessary to make judgment^ creditors' parties, as in bills of foreclosure, the charge • is proper if the service was actually performed. But in this case there was, prima facie, no necessity of searching for judgment creditors of the defendant; and the taxing officer should not have taxed those items without some further evidence to show why such instructions were necessary. Where the object is merely to get an exemplification of a record, to be used as evidence or otherwise, the charge for instructions to search cannot be allowed. The objection as to the number of folios in the bill and other pleadings was made before the taxing officer; but as the pleadings were produced before him, as well as the affidavit of the complainants’ solicitor, I shall presume they were correctly taxed. (Lyon v. Wilkes, 1 Cowen’s R. 591.) There is no affidavit that any mistake was made by the taxing officer in this respect, except as to the original bill. I shall, therefore, not take the trouble of counting the folios in all of these voluminous pleadings to ascertain whether the taxation is right as to the rest. I have examined the original bill, and find it has in fact been taxed at about ten folios too much. That item, including the draft, engrossment, abbreviation and copies of the bill, must be reduced; and the solicitor for the defendant, on the relaxation, may also be permitted to show to the taxing officer that a similar mistake has occurred as to any other pleading or proceeding. Under the fee bill of 1818, those parts of the will which are copied verbatim, must be rejected in allowing for the draft of the bill. ( And see 2 R. S. 651, § 13.)

The subpoena issued upon the original bill could not have exceeded two folios. That upon the supplemental bill, which contained so many parties, probably amounted to more at the rate of 90 words to the folio as the law then stood. But the complainants could only be allowed for one draft thereof. .(Jackson v. Mather, 2 Cowen’s R. 584. 2 R. S. 651, § 12.) The copy of the subpoena to annex to the affidavit of service was unnecessary and is not taxable. The original subpoena might have been annexed; or, the two folios allowed for the affidavit would have been sufficient to have described the process served, without any annexation whatever. The subpoenas for witnesses probably amounted to three folios. The allowance settled by the supreme court, under the present fee bill, is three folios for the draft and engrossment of the original subpoena, and two for the draft and copies of the tickets. As the number of words in a folio are now the same in both courts, that must be considered the ■ proper allowance here. By the fee bill of 1813, (2 R. L. 20,) twelve and a half cents were allowed for subpoenaing a witness in this court as well as in all others.’ The same al.loWance is contained in the' revised statutes, in the bill of attornies’ .fees in the. supreme court.' But I beleive, through mere inadvertence, no 'provision is now .contained.in any statute, prescribing the allowance "for serving a subpoena upon-a .witness in this court and perhaps in some other courts. The former allowance must therefore be continued here until the legislature shall otherwise direct.

Under the fee bill of .1818 a precipe or written request to the register to enter a common order was allowed. But the. revised statues having abolished all precipes,'no charge of this kind, or which is in the hature of'an allowance, for a pré- . cipe, can now be taxed. • The only charge to which the solicitor is entitled is fifty cents for attending the register to "enter the order.' I do not perceive however that the master has allowed for any such written ■ request made since the revised statutes went into operation. Interrogatories were necessa- . ry and proper, at the time the parties commenced ' taking their testimony in this case; and the copy annexed • to the-testimony "was to be filed therewith. The master has therefore properly allowed for the engrossment of that copy. The other' copies allowed for on taxation, also appear to have been proper charges at that time. The same allowances are still proper under the present fee bill where interrogatories are annexed to a commission, as directed'by the' 72d rule. But. the charge for notice that the copy delivered was á copy of the interrogatories, was improperly allowed; and alf similar charges, must be rejected. ' When a party serves ,a¡ copy of a bill, answer; order, interrogatories or other proceeding, and which on its face purports to be a copy of such ■ pleading or proceeding, it cannot be necessary to give notice to the solicitor on whom it is served that it is -what, it purports to be. It is' irregular to serve a paper purporting to be a copy Of the bill or answer in a cause, if the-1 original has not been actually filed ; or to serve a copy of an order which has never been made. All notices which were not required by the practice of the court, should have been rejected by the taxing officer, as useless and unnecessary services.

The affidavit of the service of the notice of order to answer appears to have been necessary and proper, as it formed the evidence on which to found an order to take the bill as confessed. If the affidavit was actually made, it was properly allowed in the taxation, although its use was after-wards rendered unnecessary by the putting in of the answer. But the affidavit of service of notice of the examination of a witness is not usually made, or needed. The charge for this affidavit therefore ought not to have been allowed without some evidence to explain how it became necessary to make and use such an ffidavit, which could only be wanted on some special application to the court. If several witnesses were to be examined at the same time and place, only one notice of examination, embracing the names and additions of all those witnesses, should have'been taxed. A separate notice of the examination of each witness will never be given in such a case, except for the mere purpose of swelling a bill of costs. The notices of the examination of the several witnesses, for the examiner, are not required by the practice of the court, and should have been disallowed.

The affidavits appear to establish the fact of the attendance of the witnesses, as taxed by the master. The claim for a further allowance for travel in coming before the examiner and returning, if the distance was less than fifteen miles in travelling both ways, was properly rejected. Such an allowance ought not to be made, unless there is evidence that the witness was required to attend so early, or was detained so late, that he could not come or return, within the usual hours of travelling, on the day. of his examination. If the whole distance both ways is over fifteen miles and under thirty, one day should be allowed for travel ; and if over fifteen miles each way, the witness should be allowed one day to come and one to return, independent of the time he is detained for examination. Where travel is claimed, the affidavit should. show the probable distance travelled by each wit-. ness. (Shufelt v. Rowley, 4 Cowen’s R. 58.) T he charges for expenses paid to the witnesses, beyond the amount of ■the per diem allowance, were properly rejected. They were not taxable against the adverse party.

Thosé depositions which were taken on and before the 24th of April, 1823, were properly charged at 25 cents for the drafts. On' that day the allowance for drawing depositions was reduced to 20 cents. Those taken subsequently can only be taxed at the latter rate ; and the engrossment of all must be taxed at twelve cents only. Although the depositions were drawn and engrossed by the .solicitors, for the sake of convenience,, that will not authorize them to tax at a higher rate than if the service had been performed by the proper officer of the court. The copy for the adverse party was properly allowed, under the stipulation ; as he would ■ have been obliged fi> pay the exaniiner' for a like copy, and at the same rate. The allowance of twelve and a half cents for swearing each witness was rightfully substituted by the taxing officer, instead of the gross sum paid to the examiner for his travelling expenses, <£c. in performing that service. Although the manner in which the testimony was taken in this case may have saved some expense to the parties, it ' would be a dangerous innovation to permit the taxing officer, upon such a suggestion,, to départ from the allowances as' fixed by the fee bill. The charges for serving the copy of the' depositions, arid for the notice of its being a copy, should have been wholly disallowed. There is no allowance in the fee bill for serving a paper of that description; and the notice was unnecessary for the reason before stated.

• In the case of Decaters v. La Farge, at the last may term" (a) this court decided that copies of the pleadings, depositions, &c. for the use of counsel were not taxable under the fee bill of 1818, nor under the,fee bill in the revised statutes. The ..abbreviation is all that is necessary; especially where the solicitor is allowed one copy in addition to the draft for his own use. .He can loan that copy to his counsel if it .should be desired by the latter to examine the pleadings more at length. The complainants were obliged to furnish copies of all the pleadings and depositions, at the August term, 1828; as the rule of the 23d of June did not go into effect until the end of that term. The charge for those copies is therefore correct, with the exception of the mistake as to the number of folios. But the master has inadvertantly again allowed for abbreviating the supplemental bill at that term for the use of counsel, although the abbreviation had before been allowed. The charge for an abbreviation of the report was improper, as no such allowance is contained in the fee bill.

The question whether it was not necessary to make all the-heirs of Thomas Rogers and of T. Rogers, junior, parties to this suit appears to be a very plain one. And if Rogers had made the objection in his answer, instead of raising it for the first time at the hearing, the complainants would have been charged with all the extra expense which was produced by their neglect to amend their bill, so as to bring the proper parlies before the court, in an earlier stage of the cause. (Mitchell v. Bailey, 3 Mad. R. 61. Jac. R. 163.) Both parties were probably equally in fault on this subject, as the facts were equally in the knowledge of both. For this reason I have some doubts whether each should not have been compelled to bear his own share of the unnecessary expense, which has arisen in consequence of not sooner correcting this mistake, and of not making the objection the first opportunity. But as Chancellor Sanford made no disposition of those costs when he ordered the supplemental bill to be filed, and my attention was not called to this subject at the time of making the decree of September, 1828,1 am inclined to think the complainant’s share of them must be allowed against the defendant, under the terms of that decree. As the greatest part of the supplemental bill, however, is a mere copy of the original bill, and of the answer of H. Rogers thereto, the solicitor for the complainants must not be allowed for the draft of that part, nor for the second abbreviation thereof for the use of counsel. The costs of opposing the motion made by the defendant, in which the opposition was successful, are properly taxable as costs .in the cause; nothing being said as to those costs in the order. ■ (1 Sim. & Stu. 357.)

The precipe or written request to enter the order to answer, previous to. July, 1824, was not taxable even under the old fee bill; as it was at that time a special order, made by the court. Those charges should' therefore have been disallowed. The double charges for notice to the clerk to set down the causé, and for notice of the issue, &c. must be corrected as often as it occurs, according to the decision in Doe v. Green, The charge for two counsel attending prepared for the argument of the cause at a term when it was not reached on the calendar, is npt provided for in the statute. In this respect there is a marked difference in the language of the last item of allowance for counsellors’ fees in this court, and that which is used in the corresponding provision as to counsellors’ fees in the supreme court. The same difference is found in the revised laws'of 1813. This difference could not have been the result of accident; especially .as the legislature in the last revision, intentionally altered another item' in the fees of counsel in this court, on the recommendation of the revisers, which clearly shows that they intended'to allow a counsel fee for attending prepared for argument in the one case but not in the other. I believe the uniform construction of the fee bill, by my predecessors, has been to disallow the charge for attending prepared to argue, .the cause, if the same was not in fact reached on the calendar. However equitable the allowance may be where the counsel attend in good faith supposing the cause will be reached, • this charge must continue to be disallowed on taxation until.the legislature shall interfere and change the law.'

Two charges for postage, in the'whole amounting. to nearly $28, are taxed in gross, without any specification of the items. The statute, (2 R. S. 653, §. 7,) provides that disbursements shall not be allowed without an affidavit specifying the items thereof particularly. .Under this provision,. every item, for postage- or other. disbursements, should be stated particularly in the bill óf costs or in the affidavit; specifying briefly the occasion and circumstances of the expenditure : as, “Postage on letter to register enclosing bill to be filed, SO,50; Postage on letter directing the enrolment of decree,” SO,25, &c.; so as to enable the taxing officer to judge of the necessity and reasonableness of each item of the disbursement. This specific objection does not appear to have been made before the taxing officer, or it would probably have been obviated, as there was a general affidavit as to the correctness of the charge. But it is the duty of the officer to see that this and other similar directions of the statute are complied with, whether the taxation be opposed or not. The taxation must be reviewed as to these charges ; but the complainants are to be permitted to furnish to the master, on the retaxation, a bill of the items of postage, with a new affidavit as to its correctness.

The charges for attending the master to obtain his signature to summonses, and to procure his report after it was completed, are not found in the fee bill, and must be disallowed. The item in the fee bill for “ attending a master upon any matter referred to him not herein otherwise provided for,”&c. will be understood by referring to a similar allowance in the act of 1818, and to Chancellor Kent’s remarks thereon, in his report to the legislature. (Blake’s Prac. 1st ed. app. 122.) It was meant to provide a general allowance for attending on references to the master in all cases, except references to take and state accounts and to tax costs, which are otherwise provided for in the fee bill. Under a different item in the fee bill, the solicitor is entitled to 50 cents for attending before the master, to settle the draft of the report, when summoned for that purpose, and on other occasions of that kind. But he Is not allowed for attending before the master merely to get his signature to a summons for the adverse party, or to obtain the report after it has been completed. The allowance for drawing charges, at the time the services contained in this bill of costs were rendered, was 20 cents instead of 25 cents, as allowed on taxation here. The engrossment is also improperly taxed. The allowance for engrossed copies to file is only for such copies ás are directly or ultimately to he filed in the register’s or clerk’s office. It does not extend to those which are merely brought into the master’s office for the purposes of the reference. These are to be taxed at the usual rate allowed for ordinary copies. The same remarks are applicable to the copy of objections to the draft of the master’s report, which was also-improperly taxed as an engrossed copy to file. The charge for the draft of a release prepared for one of the defendants to sign,'to save the. expense of making him a party to the suit, appears to be proper. The proceedings to obtain special directions to- the master, and to carry into effect the decree of Septetnber, 1828, were necessary, and were properly taxable as costs in the cause.

The complainants claim several items which they allege were erroneously stricken out on taxation ; and they ask for an allowance of those items, if a retaxation is directed. In ordinary cases, if either party is dissatisfied with the decision of the taxing officer, as to any particular items of the bill of costs, it is the duty of such party to bring those questions directly before the court, by an application on his part, although the adverse party applies for a retaxation as to other items. On the other hand, the court does not usually examine or direct a retaxation as to any items in the bill where the decision has been against the party appealing, unless the objections to the decision of the taxing officer, either as to the particular items or as to some general principle in which they are embraced, are distinctly referred to in the petition or other papers upon which the application for retaxation is founded. But under the circumstances of this case, where the delay of the defendant to appeal until after the issuing of the execution prevents a direct application from being made on the part of the complainants, I think it right to look into their objections at this time, and to direct the master to review his taxation as to those items also, if any of them have been improperly rejected. Although the reasons for the delay on the part of the defendant áre sufficiently explained, that delay must not be permitted to prejudice the other party. Some of the items claimed, I have already noticed.

The charge for instructions to the surrogate was properly rejected. It is somewhat doubtful whether even the exemplification of the will from the surrogate’s office could have been necessary after it had been set out at full length in the answer of H. Rogers to the original bill. It may, however, have been procured before that time, though charged afterwards. The original subpoena was obtained from the clerk, previous to the act abolishing the office of clerk in chancery at Albany; and no orders for the issuing of subpoenas were ever entered in his office. They are now entered under the general order of January 9th, 1830. The manner of serving the subpoena on a defendant is prescribed by one of the standing rules of the court; and the charges for instructions as to the manner of serving it, and for disbursements, beyond the allowance fixed by the fee bill, were properly rejected by the taxing officer. Several items now claimed by the complainants were properly stricken out of the bill, on the ground that they were charged a 'second time. Others were properly rejected as not taxable, under the decision in Doe v. Green, before referred to, and other recent decisions, which it is not necessary now to refer to particularly.

Several charges for the solicitor’s fees on special motions and petitions were rejected by the taxing officer ; I presume, upon the ground that the solicitor did not attend in person, or that he also acted as' counsel in the cause on the same application. This does not appear to be one of those cases where a personal attendance of the solicitor is necessary to entitle him to make the charge. The service is generally performed by his agent. But if the solicitor was himself the counsel and has been allowed fees in that character for his services on the application, he cannot be allowed fees for attending also as solicitor on the same application. (2 R. S. 651, § 8.) The allowance to the solicitor for atténding on the hearing of the cause is placed on a different footing, by the fee bilL And it is perfectly evident, as well from the wording of the law as from the note of Chancellor Kent, who framed this provision and incorporated it into the fee bill of 1818, that it was never intended to grant the allowance for a mere constructive attendance. To entitle»the party to make that charge, there must be an actual attendance in person, on the argument, by the solicitor on record. .The employment of another solicitor to attend as his proxy in this case was not a sufficient: compliance with the provision of the'statute to justify the allowance of those items on the taxation.

The affidavit of the solicitor, exhibited to the master, shows that the services of perusing, amending and signing the pléading, interrogatories, exceptions, dec., were actually performed. It also appears that several counsel were employed in the progress of the cause. But these proceedings are only signed by the solicitor on record, who was also a counsellor and the affidavit does not state that those services were in fact performed by any other person. This affidavit may therefore be true, and yet the real fact may be that none of the other counsel in the cause ever perused the drafts, or examined the pleadings, until after they were engrossed and filed. Where the name of the solicitor alone appears as counsel on the engrossed pleadings, it -requires strong evidence to establish the fact that other counsel examined and signed the drafts. If such was the case here the affidavit should have been direct and positive. The master was therefore right in disallowing these charges. Had the original bill,, as drawn by the solicitor, been carefully examined by the other counsel in the cause,.they might have suggested the necessity of making all the heirs • parties thereto ; and thus have saved the extra expense of the supplemental proceedings. Solicitors, who áre many of them, only junior counsel, are not aware of the,importance of submitting the draft of their pleadings, and particularly of the original bill, to the scrutinizing examination of the senior counsel in the first instance. The services of such counsel in contested cases are frequently of more importance to the client in framing the bill or in preparing the. answer, than upon the final argument of the cause before the court. And I am every day compelled to.regret that the preparation of the pleadings in litigated causes in chancery, and the signature of .counsel thereto, are by too many considered as merely matters of form. ■ A very considerable proportion of the actual expense of litigation in this court,' is unnecessarily produced by the neglect of the solicitor to con-■suit with the counsel in the cause, at an early period, as to the framing of the bill, and as to the necessary parties to the suit.

The charge for perusing and settling a decree cannot be allowed on settling a mere decretal order. It is confined to a final decree in the cause. The charge for settling the final decree was allowed by the master, and all the others Were properly rejected. ■ The charges for solicitor’s fees for attending the chancellor to settle orders and decrees were not taxable. ' No provision for such services is contained in the fee bill. It is neither an attendance on petition of special motion. . The so- ,■ licitor is allowed for attending the register to settle the decree according to the decision of the court. If the register has any difficulty in settling it, he submits the draft and objections to the decision of the chancellor. (For the origin ■of this practice see North's Life of Lord Keeper Guilford, 202.) If the solicitors, for their own convenience, submit the question directly to the chancellor, as they frequently do, no additional charge should be made.

An affidavit of regularity, containing ten folios, was unnecessary. The rule which requires an affidavit to be produced on the hearing, confines it to mortgage bills which are taken as confessed. But it may also be proper in other cases, where the bill is taken as confessed as to any of the defendants, to produce a short affidavit, or the certificate of the register, on the hearing, stating in general terms that the bill has been regularly taken as confessed against those parties, and specifying whether it was done after an appearance, or upon personal service of the subpoena, or on a proceeding against the defendants as absentees. In no ordinary case, however, can it be necessary that the affidavit should exceed two or three folios. To that extent it may be allowed in this case, as it was actually made and used.

The copies of the opinion of the court, for the master on the reference, were not taxable.’ The decree or order of reference contains the directions which are to govern the master in taking the account. The decree contained no directions to the defendant, H. Rogers, to execute a release. An allowance, therefore, for preparing such release, could not be taxed in anticipation that it would be wanted. In the case of Burling v. Coggshall, in September, 1830, on appeal from the decision of the vice chancellor of the first circuit, if was settled that the solicitor was entitled to charge for .the notice of taxation, in addition to the allowance for a copy of the bill of costs to be delivered to the adverse party w^h such notice. The intention of the revisers in changing the phraseology of the last item of the fees allowed'to solicitors, was to define with more precision- the object of the delivery of the copy of the bill of costs before taxation; not to reduce the amount, nór to deprive the solicitor of the allowance for notice of the taxation of such bill, to which he was entitled under the act of 1818. This item for notice of taxation must therefore be allowed. ' - '

The bill of costs in this case must be retaxed by the taxing ‘master of the fourth circuit; on the principles here stated; and without - costs to either party. The items not objected to of claimed on this application, and those as to which nothing is said in this opinion and which are not embraced in the principles here laid down, are to remain as previously taxed. The proceedings on the execution must be stayed until eight days after the retaxation is completed. At which time, upon producing to the sheriff the' certificate of the master stating the amount at which the costs are taxed, he is to proceed and collect the amount on the execution, if the same is not sooner paid to him by the defendant. -

It is to be regretted that appeals from the taxing officers in relation to questions of costs should be so frequently made to this . court. These contests are calculated to injure the profession, in the eyes of the community, and- to bring its members into disrepute. The legislature have provided a fair and liberal fee bill for- the practitioners in this court; and they should be satisfied with charging for such services as are clearly within its provisions. But if so much of the time of the court is to be consumed in these constant ■struggles' to get compensation for fictitious services, or to ob: tain allowances of a doubtful character, the legislature will be compelled to interfere and to change the mode of compensating for professional services. The correct rule for fair practitioners is to make no charge but for services actually and necessarily performed, and which Some clearly within the provisions of the statute. And the proper rule to be observed by the taxing officer is to reject a charge if he has doubts as to its correctness. Even the taxation of an item will not protect the solicitor from an action for treble damages, if he charges and obtains payment for services which were not actually performed; or if he receives compensation for a greater number of folios than were contained in the proceedings which were drawn, engrossed, or copied by him. (2 R. S. 650.)

These remarks are not made in reference to the bill of costs in this particular case, but to call the attention of the bar to the subject, as one in which they all have a deep interest ; and in which the character and welfare of the members of this most honorable and useful profession is, in some measure, involved.

        Ante p. 347.


text:
    White vs. Buloid and others.
    The personal representatives of a deceased sole complainant may be substituted as complainants on motion or petition, under the statute, without resorting to a formal bill of revivor.
    But if the other parties in the cause, who have appeared, do not join in the application to substitute the representatives of the deceased complainant as parties in his place, they must have due notice of the application. Whether, on an appeal from a decision t of a vice chancellor denying an . ex parte application, the appellant can bring on the argument of the appeal ex parte ? (¿mere.
    If a deceased complainant was before the court in two different characters, and by his death the rights in one character are cast upon a defendant in the cause, and in the other character upon the personal representative, whether the latter can be substituted as complainant, under the statute 2 (¿mere.
    July 19th.
    This was an appeal from the decision of the vice chancellor of the first circuit. The complainant was the only executrix of Charles White deceased who had obtained probate of the will ; and the bill was filed by her to reach certain funds, the proceeds of his estate, which the complainant claimed on account of a debt alleged to 'be due to her from the decedent. Some of the defendants appeared and answered ; and the cause being at issue, the parties had commenccd taking testimony therein when the sole complainant died. Mrs. Buloid, one of the defendants, as surviving exec-, utrix of C. White, thereupon obtained letters testamentary, de bonis non,' &c. upon his" estate and administraton of the estate of Lydia White the deceased complainant, with the will annexed, was granted to the public administrator of the city of New-York. The latter, on affidavit of these facts, made an ex parte' application to the vice chancellor of théfirst circuit, before whom the cause was pending, to be made complainant in the suit, according to the statute. The vice chancellor decided that the suit being entirely abated, by the death of the sole complainant, it could not be revived by her personal representative, by motion or petition under the provisions of the revised statutes ; but that a bill of revivor was necessary. From this decision the public administrator appealed to the chancellor.

      W. Silliman, for the appellant, submitted the case, ex parte, on a written brief.
   The Chancellor.

I havé some doubts as .to the regularity of bringing on this appeal without notice to the defendants who. had appeared in the suit before the vice chancellor. Although they had no notice of the • application to the judge a quo, yet they have ,an interest in the question, and will be affected by the order of the chancellor if the decision if "the vice. chancellor is reversed. But as the result must" be the same, and the decision on this appeal will not 'be considered res adjudícala against them, if they think proper hereafter to discuss the same questions, I shall proceed to dispose of the appeal upon the ex parte argument of the appellant’s counsel." ( See Linwood v. Hathom, 3 Bligh’s P. Rep. 200.)

The order of the vice chancellor, refusing the ex parte application to revive, was correct; but not for the reasons "stated in that order and in the opinion endorsed on the papers. The 115th, lltith and 117th sections of that title „ of the-revised statutes which relates particularly to this court, ( 2 R. S. 184,) were intended to embrace the provisions con-" tained in the last clause o.f the 7th section of the act of 1813, ^concerning the" court of chancery,” (1 R. L. of 1813, 489,) and which were also contained in previous revisions. Although the language of these provisions has been somewhat varied since the act of 1788, yet I believe its uniform construction has been to give to the personal representatives of a sole complainant the right to revive on motion, to the same extent as they would be entitled if there had been another complainant who had survived. The 115th section is broad enough to embrace the case of an abatement of the suit by the death of asolé complainant. If his rights are cast upon those representatives which the law gives or ascertains, I see no reason why they should not be substituted as complainants under the statute, instead of compelling them to resort to the more expensive proceeding by bill of revivor. Numerous orders of this description have been made by the •court, for the last twenty years; and even if this construction of the statute was originally wrong, it is now too late to change it except by legislative interference.

But where, as in this case, the defendants, or some of them, have actually appeared in this cause, it is irregular to obtain an ex parte order to revive, without the consent of the parties who have appeared. If they do not join in the petition to revive, due notice of the application should be given to them, or their solicitor, in the usual manner of serving notices on parties who have caused their appearance to be entered in a cause in this court.

In Douglas v. Sherman, decided in March last, the practice to be pursued in such cases was fully stated and settled. The vice chancellor should therefore have denied this application; but without prejudice to the right of the public administrator to present a new petition, brifly stating the facts which entitle him to be substituted complainant in the place of the decedent, Lydia White, and giving due notice of the application to all the other parties who have appeared in the cause. In this case, as the rights of the former complainant as the executrix of Charles White, are now cast upon Mrs. Buloid the surviving executrix and one of the present defendants in the cause, that fact also should be stated in the petition; so that the suit may be revived against her in that character also, if it can be legally . done in that form.

The order of the vice chancellor refusing the application of the appellant must be affirmed, but without adopting the reason stated in the order, and without preju dice to the right to present such petition; on which petition all parties may be heard before him as to the right of the appellant to an order of revival. (Young v. Liven, 4 Dow’s P. C. 143.) As none of the defendants have been heard on this appeal, I do not intend to express any opinion upon the question whether this suit can be revived against Mrs. Buloid as the new executrix of Charles White, without a formal bill of revivor, under the very peculiar circumstances of this case. That question is left open for discussion before the vice chancellor, if the. appellant should think proper to proceed by petition instead of resorting to the more certain remedy of a bill of. revivor, or a bill of revivor and supplement.

       Ante p. 358.