100 A. 47 | N.H. | 1916
The question raised by the defendant's exception is as to the court's jurisdiction in respect to the allowance of costs, — not as to its jurisdiction in respect to assessing damages that are a proximate result of the defendant's misconduct. In other words, not as to the court's jurisdiction to assess the damages a person sustains because he is compelled to prosecute or defend a suit by reason of the defendant's failure to perform a duty created by contract with him or imposed on them by law for his benefit. Fowler v. Owen,
These cases therefore are not in point for, as has already appeared, *250
the question raised by the defendant's exception is as to whether the court has power to allow reasonable counsel fees or a counsel fee of more than one dollar, not as damages but as a part of the prevailing party's costs whenever it finds that would be equitable. Most courts hold that their jurisdiction in respect to the allowance of costs is statutory (11 Cyc. 24), and that is the view that obtains here. State v. Kinne,
The plaintiff also contends, that the court had power to make the order excepted to because to transfer this case when and as the defendants did was to prolong this litigation unreasonably. One difficulty with this contention is that there is neither any finding that they prolonged this litigation unreasonably nor any evidence that would warrant such a finding. As the court's findings are understood, it is true the defendants transferred this case notwithstanding *251
they had no faith in their exception, but they transferred it at the request of the insurance company liable over to them, if the plaintiff prevailed, in order to avoid giving that company an opportunity to contest liability on the ground that the case should have been transferred, if it became necessary for them to sue that company to enforce their claim. There is no statute which either in terms or by implication makes it illegal to transfer a case when the excepting party has no faith in his exception; but there is one which gives him the right to except to any order of the presiding justice and to transfer the questions of law raised by his exception to this court. It will be unnecessary to consider whether this right is limited by the rule that those acts and those only that are reasonable are legal; for the result will be the same in this case whether the right to transfer is absolute or limited by that rule, for as has already appeared the defendants transferred this case in order to avoid trouble if it became necessary for them to enforce their claims against the insurance company, and all fair-minded men will agree that in their situation the ordinary man would have done as they did. If it were true as the plaintiff contends that the acts of the insurance company are the acts of the defendants, the result would be the same in so far as this case is concerned. It is found that the insurance company had two reasons for insisting on the transfer of this case, — one a desire to contest liability; the other a desire "to defer if not avoid final payment." The first was legal, the second illegal; but the fact it is illegal to defer the payment of money that is due would not authorize the order to pay the plaintiff $250 in addition to his taxable costs, for the law limits the damage that may be recovered for such an illegal act to interest and taxable costs. Richards v. Whittle,
Exception sustained.
All concurred. *252