Eastburn v. Kirk
2 Johns. Ch. 317
New York Court of Chancery
1817
Check Treatment
The Chancellor.

*318[ * 319 ]

*317When a cause is taken out of Court before hearing, by a settlement between the parties upon some points, and by a reference to arbitration upon others, it does not appear to be fit and proper that I should be obliged to decide upon the merits, in order to determine a question of costs. Lord Hardwicke has said, (2 Vesey, 223.) that one can never come into this Court to pray a decree for costs only. Costs in chancery do not depend upon *318any statute, nor do they absolutely depend upon the event of a cause. They depend upon conscience, and upon a full and satisfactory view and determination of the whole merits of a case. They rest in sound discretion, tobe exercised under a consideration of all the circumstances. Am I then to agitate all the points, and judge of the weight of all the testimony, and draw all the inferences which an investigation of the subject might lead to, merely to determine a question of costs,, after the parties have voluntarily withdrawn the cause ? I believe there is no precedent for such a proceeding, and sound policy would *seem to condemn it. A litigation for costs only, is never favored in a Court of equity. A party cannot have a rehearing for costs only, except in special cases, and it is understood that an appeal will not lie merely for costs. The great burden of proof in this case is parol, and probably there is much difference and contradiction among the witnesses. On a discussion of the merits; it is always in the discretion of the Court to award an issue, if material facts are doubtful, and depend upon the credit due to various and contradictory testimony. Could I take such a step, or would it be tolerated, on such a question as this ? If the parties have come to an accommodation, or are in a course of pacific settlement, is it useful or conducive to the ends of justice, that all this late angry controversy should be explored, discussed, and decided upon, merely to determine and declare on which side the whole or the greater fault lies ? I am decidedly of opinion, that I ought not to undertake the examination for that purpose.

My opinion, therefore, is, that as the parties have withdrawn the cause before the hearing, and settled the merits out of Court, on terms acceptable to both, I ought not to discuss the merits merely' for the costs; and- consequently, that each party must pay his own costs, and that no costs can be charged by one party against the other.