of the court After the cause is argued, the court usually takes 9. Decision time to make up its decision. When they are ready to determine the cause, the president takes the question upon it, beginning with the junior, justice then present, and proceeds in rotation to the chief justice, and then to the senators indiscriminately.(q) The chancellor has no voice in the decision of the court on any question whatever arising on the appeal, although he may state his opinion upon every matter that may arise upon the hearing of the appeal.(r). In all cases not provided for, the practice of this court on appeals, is by a general rule made, until further order, conformable to that of the house of lords in England, when sitting as a court of appeals.(s) Costs on appeal. appeal. It was formerly determined in this court that on the 10. Costs on reversal of a decree or order the appellant is only entitled to costs in the court below up to the time that the decree or order was given, and that he could not recover costs on the appeal.(a) But by the act concerning costs, passed in April, 1813, sec. 13. it is enacted, that when a writ of error is prosecuted, if the judgment of the court below be reversed, the party prosecuting such writ of error shall recover costs, to be taxed by the discretion of the court before whom the writ of error is returnable, and such party shall have execution therefor.(b) Although this section seems applicable only to writs of error, and not to appeals, yet the court seem to have construed it as leaving it (9) Rules of the Court of Errors. (r) Ibid. (*) Ibid. ble, 1 Johns. Cas. 436. Farquharson v. (b) 1 N. R. L. $46. Clason v. Shot (a) Le Guin v. Gouverneur & Kem- well, 12 Johns. Rep. 58. 1 11. Of remitting the decree the court of discretionary with the court to give costs even in cases of appeal when the decree of the court below is reversed, and have accordingly allowed the appellant his costs of the appeal.(c) And where several defendants in chancery put in separate demurrers, on which separate decrees were given on reversal of the decrees below, the court of errors ordered each respective respondent to pay to the appellant his costs on the appeal, for each respective decree so reversed.(d) The court having made its decision, an order must of this court to be drawn, embracing the points determined by the Chancery. court. If the decree below is affirmed generally, the order is drawn accordingly ; but if it is modified or reversed, care must be taken to provide for all the points determined by the court of errors, in order that the court of chancery, upon the record being remitted, may know, with precision, the directions of the court above. The decree or order of the court of errors becomes to the court of chancery the law of the case, and the party can have no other or further relief than what is administered by the decree of the court above.(e) Being a court of review it gives such decree as the court below ought to have given; and when the plaintiff below brings the appeal the court above not only reverses what is wrong but decrees what is right, and models the relief according to its own view of the ends of justice and the exigencies of the case.(f) (c) Parkhurst v. Van Cortlandt, 14 Johns. Rep. 45. Simson v. Hart. ibid 77. (d) Le Roy v. Veeder and others, 1 Johns. Cas. 17. Le Roy v. Servis, 2 Caines' Cases in Error, 175. (e) Gelston v. Codwise and others, Johns. Ch. Rep. 189. (f) S. C. ibid. 194. COSTS. Special Contents. I. Taxation of costs. II. Security for costs. III. Staying proceedings till costs in another suit be paid. COSTS are entirely in the discretion of the court,(a) and are given, not from any authority, but from conscience, and arbitrio boni viri, and according to "a sound discretion," as it hath been called.(b) As the Chancellor has a discretion as to the giving of costs, he often uses this discretion by giving them on such terms as the justice of the case may require. The court of chancery has exclusive jurisdiction in cases of costs arising in the court.(c) Costs are in the discretion of the court.(d) Costs decreed against a trustee who had been guilty of negli gence.(e) If a final decree is silent as to costs they are lost, and cannot afterwards be ordered to be paid, unless on a rehearing the decree has been opened for that purpose.(f) If a party dies before the costs are decreed they are lost; the general rule being, that the costs die with the person; but if costs have been decreed, and the (a) 2 Mad. 415. Jones v. Coxeter. 2 Atk. 399. Bennett Coll. v. Carey. 3 Bro. C. C. $90. (6) 2 Mad. 415. 7 Ves. 29. See Corporation of Burford v. Leuthall, 2 Atk. 551. (c) Leonard v. Freeman, 3 Caines' Rep. 171, (d) Methodist Episcopal Church and others v. Jaques and others, 1 Johns. Ch. Rep. 77. (e) Nicoll v. the Trustees of Huntington, 166. Gray v. Thompson, 1 Johns. Ch. Rep. 82. (ƒ) Travis and others v. Waters, 1 Johns. Ch, Rep, 85. party dies before they are taxed, they may be recovered by his personal representatives on a bill of revivor; but to obtain the costs, the executors or personal representatives must be before the court expressly in their character as such; for if the bill of revivor states the plaintiffs to be the heirs and devisees of the party deceased, though some of them in fact are executors, yet they can only be known in their former character, and not as executors.(g) On a bill by a legatee against the administrator, when the defendant submitted to and asked the direction of the court, his costs were ordered to be paid out of the fund.(h) Costs in equity do not always follow the event of the cause, but are awarded or not, according to the justice of the case, in the sound discretion of the court.(i) And where a plaintiff had probable cause for seeking the aid of the court, but failed in establishing his title, but the defendant showed none, or no better title to the property in dispute, the bill was dismissed without costs on either side.(j) An administrator, or trustee, who resists a claim, and litigates, bona fide, from a conviction of duty, and where no intentional default is made to appear, will not, under the circumstances of the case, be charged personally with the costs; but they must be paid out of the assets of the intestate.(k) A purchaser of land chargeable with constructive notice only, by means of a lis pendens is not to be (h) Ib 153. Morrell and others v. Dickey. (k) Moses and others v. Murgatroyd, (i) Nicoll v. the Trustees of Hunting- 1 Johns, Ch. Rep, 473. ton, 1 Johns. Ch. Rep, 166 charged with costs, there being no actual fraud, though the purchase is set aside on the ground of implied fraud.(1) Where, on a bill of forclosure, the widow of the mortgagor was made a party, and answered and submitted to a decree of the court, she was held entitled to the use of one third of the surplus proceeds of the sale of the mortgaged premises remaining in court after satisfying the mortgage debt, as her equitable dower; and to her costs to be paid out of the other two thirds.(m) Executors keeping part of a sum for commissions, and litigating in favour of their claim, were decreed to pay costs.(n) The court of chancery does not ordinarily, and of course, interfere to compel the payment of solicitor's fees.(o) Taxation of Costs. It is too late, after two terms have intervened, and 1. Taxation of the decree is signed, to move for a taxation of costs.( The costs or exceptions, like costs in all other cases in chancery, are subject to the discretion of the court.(b) But the general rule is that if the defendant submits to the exceptions, the plaintiff has his costs; and if they be referred to a master the plaintiff shall have costs on the exceptions allowed, and the defendant his costs on (1) Murray and Winter v. Ballou and Johns. Ch. Rep. 22. Hunt, 1 Johns. Ch. Rep. 566 (a) Morris and another v. Mullett and (m) Tabele v. Tabele and others, 1 others, 1 Johns. Ch. Rep. 44. Johns. Ch. Rep 45. (n) Manning and others v. Manning's executors, 1 Johns. Ch. Rep. 527. () In the matter of Southwick, 1 (b) Methodist Episcopal Church and others v. Jaques and others, 1 Johns. Ch, Rep. 65, costs. |