3 Paige Ch. 100 | New York Court of Chancery | 1831
Upon an examination of the provisions of this decree, I am inclined to think the construction of it is, that the master is not directed to compute interest on the judgment in the slander suit. Whether he is authorized to allow interest on the balance due, after deducting Comstock’s judgment and the interest on the same up to the time when the defendants agreed it should be set off against the verdict in the slander suit, is a question not properly raised by this, appeal. If the master improperly allows interest on that balance, either because it is not authorized by the decree, or because it is not equitable that it should be allowed pending this suit and while the defendant was. prevented by the injunction from paying over the balance, it can only be corrected on exceptions to the master’s report. Strictly speaking, the amount
After the balance is ascertained by the report of the master, I can see no valid objection to that part of the decree which directs Comstock to pay interest on such balance if the same is not immediately paid.
• The only remaining question is as to the refusal of the vice chancellor to allow the appellant his taxable costs, to be paid out of the fund. In this respect, I think the decision of the vice chancellor is erroneous. This defendant is made a party to these suits, not on account of any fault or misconduct on his part, but to enable the complainants to obtain a debt due from him to their judgment debtor, and which debt he was ready and willing to pay, after deducting what he had a legal right to retain by way of set ofF against Mott. He was properly made a defendant in this case, although he was not strictly a necessary party. It does not follow, however, that an innocent defendant is to lose his costs, although he is a necessary party to enable the complainant to obtain the relief to which he is entitled as against another defendant, or otherwise. The costs of such a party, according to the ordinary practice of the court, must be paid out of the fund, if there is a fund recovered in the suit. And where there is no fund, the complainant is frequently compelled to pay the costs himself; and is permitted to recover them over against the other defendants, whose default or misconduct has made such costs necessary. In this case great injustice will be done to this appeEant if he is-compelled to sustain the whole expense of putting in'his an
The decree of the vice chancellor must therefore be affirmed, except as to the costs of the appellant. And in that respect it must be modified in such manner as to direct those costs to be taxed, and to be deducted from the balance due on the judgment in favor of Mott against him ; and that the appellant only pay the residue of such balance, and interest thereon, to the solicitor of the complainants, to be applied as directed by the decree. As the appellant has only succeeded as to a part of the matters of his appeal, neither party is to be allowed costs as against the other on this appeal. But if he had appealed on account of the disallowance of the general costs of his defence only, he would also have been entitled to his costs here.
This case must be remitted to the vice chancellor, as it appears further proceedings have been had on the decree appealed from before the proceedings were stayed by perfecting the security on the appeal.