Rogers v. Rogers , 3 Wend. 503 ( 1829 )

Mr. Senator Maynard

concurred in the opinion delivered by the Chief Justice upon the main questions in the case, but differed with him upon the question of costs. The liability to costs, he said, depended upon the intent with which the acts of the appellant complained of in the court below were done ; that is, whether they were fraudulent or not. Those acts were illegal, and their illegality is evidence of intent. The appellant expressed a willingness to account, accompanied however by a denial of the right .of the complainants. His offer to account amounted to nothing, and ought not to excuse him from the payment of costs. He was therefore of opinion that the several decrees of the court of chancery appealed from ought to be affirmed, and with costs to be paid by the appellant.

Mr. Justice Sutherland

approved of the suggestion of Mr. Senator Maynard, that costs should follow the affirmance of the decrees, not on the ground of fraud, but because the appellant, in the offers made by him to account, had preferred unfounded claims, viz. the notes barred by the statute. The complainants were compelled to file their bill. Had the appellant offered to settle with the respondents on terms such as the court of chancery or this court would have approved, the respondents would not have been entitled to costs. As it is, however, costs should be allowed to them.

Senators Mather and Throop also expressed their opinions that the decrees should be affirmed, with costs.

In the final decision of the cause, the following questions were put and decided.

1. Ought the exception to the master’s report, in rejecting the notes claimed by the appellant Halsey Rogers, to have been allowed by the chancellor 1 In the affirmative, 2 viz. Senators S. Allen and Todd. In the negative, 17.

2. Ought Halsey Rogers, the appellant, to be charged with the property specifically bequeathed to the widow, and left by him in her possession 1 In the affirmative, 18. In the negative, 1, viz. Senator S. Allen.

3. Shall the several decrees appealed from be affirmed or reversed, saving the question of costs l For affirmance, 17. For reversal, 2, viz. Senators S. Allen and Todd.

4. Shall the appellant pay costs ? In the affirmative, 15. In the negative, 4, viz. Chief Justice Savage, Mr. Justice Marcy, Senators Todd and Wheeler.

Whereupon the several decrees of the court of chancery appealed from in this case, were ordered, adjudged and decreed to be affirmed, with costs to be paid by the appellant to the respondents.