1 Barb. Ch. 157 | New York Court of Chancery | 1845
It is not necessary, upon this appeal, to examine the question at length as to the right of the complainant, in such a suit as this, to make the state of Indiana a party defendant. No question on this subject arises under the constitution of the United States. The eleventh article of the amendments to that constitution, declares that the judicial power of the United States shall not extend to any suit in law or equity, commenced or prosecuted against one of the United States, by citizens of another state, or by citizens or subjects of any foreign state. The courts of the United States have not, therefore, even a concurrent jurisdiction in such a case. And there is nothing in that constitution to deprive the court of chancery of this state, of all the jurisdiction on the subject which it possessed before that constitution was adopted. It is true this court has not the power, absolutely, to compel a sovereign state to perform a decree, which may be made against
But even if the state of Indiana could not have been made a party defendant in the present suit, it does not follow that the complainant had the right to make Bright & Palmer defendants, as the mere agents of the state; especially when it was not pretended that the stock claimed by him was standing in their names, or that they were charged with any special duty in relation to such stock, by the laws of the state of Indiana, or otherwise. The demurrer of the appellants was therefore properly allowed by the vice chancellor. Not upon the objection made ore tenus, that the state of Indiana was a necessary party to the suit, for that was a matter to be urged by the other defendants, if by any one, but upon the ground that these two defendants were not proper parties. In other words, there was no equity
The only remaining question is, whether the decretal order of the vice chancellor was right as to costs. Although the costs are in the discretion of the court, in suits in equity, except in the case of a complainant’s dismissing his own bill, or suffering it to be dismissed for want of prosecution, as a general rule, the party succeeding upon the merits is entitled to costs. And this is almost uniformly the case where the bill is dismissed upon a general demurrer thereto, for want of- equity. For the complainant, by one of Lord Bacon’s orders, was to be charged with costs in all cases, where it should appear, upon the hearing, that he had not probable cause for instituting the suit. And a complainant can hardly be said to have probable cause for making a person a defendant, in a chancery suit, when upon the face of the bill it is evident the complainant had no equitable claim whatever against such party ; and had no right to make him a defendant in the suit, for any purpose.
The statutory provisions in relation to costs in actions at law, brought by executors and administrators as such, do not apply to suits in this court. • The principle, therefore, that costs in equity, are in the discretion of the court, applies to suits brought by executors or administrators in this court, as well as to suits brought by other persons. Indeed, the rule is the same at law, in cases where the costs are not regulated by statute. And, therefore, where an administrator had probable cause for bringing an action against an heir for a bond debt of the ancestor to the p'.-tiutiff’s intestate, but subsequently discovered that the estate had been conveyed, he was permitted to discontinue his action without costs; upon condition "that he should not bring another suit without leave of the court. (Burnet, adm’r, v. Cock, 4 Búr. Rep. 1927.) But the same court, in a previous case, where no such ground of excuse appeared, refused to permit an executor to discontinue, without costs. {Harris, ex'r, v.
Where a bill is filed, by an executor or administrator, which bill upon its face is not sustainable, that is, where the matter in dispute does not depend upon a question of fact, but one of law, and consequently which is as much within the knowledge of the complainant as of his testator or intestate, and such suit is brought against a stranger to the estate, and not for the mere purpose of obtaining the direction of the court, as to the manner of the complainant’s executing his trust, or to settle the conflicting claims of the several persons interested in the estate, I see no good reason for departing .from the general rule of this court relative to costs in suits brought by other persons. And in the case of Frazer v. Moore, in 1720, (Bunb. Rep. 63, and 4 Burn. Feel. Law, 320, & C.,) the court of exchequer acted upon that principle, and required the administrator to pay costs upon th allowance of a demurrer to his bill. The court also said, in that case, that such was the constant course in equity. Certainly the exemption from liability for costs, by executors or administrators, suing in this court in behalf of their testators Or intestates, ought not to extend to cases where the want of equity, as against a party who has been improperly made a defendant in the suit, is so palpable that counsel of ordinary intelligence could not reasonably have supposed such suit would eventually be sustained against such defendant. And such appears to be this case, so far as relates to the defendants Bright & Palmer; as to whom there does not appear to be a single allegation in the complainant’s bill, showing that they are in any way connected with the subject matter of this suit, or that they have any power or authority to interfere with the stock standing in the name of the state of Indiana, upon the books of The Apalachicola Land Company. It is not even stated that they, or
The decretal orders appealed from must, therefore, he affirmed, with costs.
