6 Johns. Ch. 297 | New York Court of Chancery | 1822
When the order of the 1st of July was made, it was upon the special circumstances of the case, though it was then understood to be the English rule, in ordinary cases, to make the creditor, who is not a party to the suit, and who comes in to prove his debt before the master, prove it at his own expense. The case of Abell v. Screech, (10 Vesey, 355.) is certainly not a strong case on the point. The motion to allow the creditor, who proved before the master, his costs out of the fund, was simply denied; and, at first, Lord Eldon thought the claim reasonable, but, afterwards, when he came to be assisted by the Blaster of the Rolls, “ the inclination of his opinion was, that it is too dangerous.” The Blaster of the Rolls barely said, that the creditor’s costs were not allowed of course; and they both seemed to agree, that it would be very difficult, as to the allowance or disallowance of such costs out of the fund, to distinguish between the cases where much and where little expense had been incurred.
There were two cases cited in Abell v. Screech, one in 1776, and one in 1804, where the costs of the creditors had been taxed and allowed against the fund; but these
I regret that I have not found the rule to be better settled than it appears to be by the case referred to. If the creditors come in under the general order in these cases, and which is given in Thompson v. Brown, they are to be equally contributory to the costs of the suit, and ought to have their costs equally borne out of the fund. They stand upon the same title, as to costs, with the original plaintiff, and in this case the costs of all the creditors, who come in under the general order, have been allowed and charged to the fund. The representatives of JYicholl were denied their costs by the order of the 1st of July, in consequence of coming too late, and not being bound to contribute ; and if there was nothing more in the case than to determine whether the master’s bill, as well as the solid-
I wish it to be understood, that this case is decided upon the facts peculiar to it, and not upon a general and settled rule. It appears to me, that if the creditor is admitted to prove his debt before the master, under the general rule, he comes in under the condition of contributing to the costs
I shall, therefore, in this case, direct that the master’s bill be charged to the general fund.
The following order was entered:
“ It is declared, that when a creditor comes in under the general decree for the creditors to come in and prove their debts before the master, he is admitted upon the condition of being contributory to the plaintiff for his proportion of the expense of the suit, to be settled by the master, and he has an equal title with the plaintiff to have the necessary costs of proving his debt taxed and charged upon the fund, and especially, as he may be prohibited from asserting his claim at law; and that where the creditor does not prove in season, and is admitted, afterwards, to prove, under a special reference for his case, and without such condition, he ought, ordinarily, to bear his own costs; and this was the special ground of the order in this cause, denying to the representatives of JYicholl their costs out of the fund. And it is further declared, that where the principal part of the expense of such creditor arises from the unsuccessful opposition of the original parties to the suit, to much of his claim, (and that fact appeared in this case from the statement of facts signed by the solicitor for the plaintiff, and by the solicitor for the representatives of JYicholl, and submitted when the former order was made,) he ought not to bear the whole expense of the litigation before the master. It is, thereupon, ordered, for the direction of the master, that the order aforesaid, of the 1st of July last, be confined to the fees of the solicitor of the repre