Foster v. Verner

Per Curiam,

The only question here refers to the costs, including the master’s fee of $1,200. The decree of the court below is that “ the parties jointly pay the master’s fees, which are fixed at twelve hundred dollars, and likewise the record costs of this case, and that each party pay the costs incident to the subpoenaing and attendance of his own witnesses.” If both parties were pecuniarily responsible, this would practically place one half the costs upon each, as if one were compelled to pay the entire costs he could collect one half thereof from the other. It so happens that the plaintiff below is insolvent, and if the order stands in its present shape the entire burden falls upon the defendant.

Inasmuch as the plaintiff failed to sustain his bill, and the relief prayed for was denied, it would be unjust to throw upon the defendant all the costs of this protracted litigation. It is hard upon the master to lose one half his fee after ten years’ labor, but we do not see our way clear to remedy this difficulty by throwing it upon the defendant.

It is now ordered that the decree below be so modified as to place the master’s fee and record costs equally upon the parties. With this modification the decree is affirmed and the appeal dismissed at the costs of the appellant.