Lorton and others vs. Seaman and others, 9 Paige Ch. 609

The Chancellor. The mistake in the entry of the order, if there was one, was waived by the filing of the replication to the answer. And the only remedy that now remains to the complainants, to obtain the payment of their costs, is by proceeding against the defendants as for a contempt, for the non-payment. The question then arises whether a demand of the costs made upon the solicitor in the cause is sufficient. In a certain class of cases a personal service is not necessary to bring a party into contempt for disobeying an order of the court. (Merritt v.

Annan, 7 Paige’s Rep. 151.) But in relation to orders for the payment of interlocutory costs, or other sums of money, the legislature has substituted a new mode of proceeding, which is not applicable to other cases of contempt. The

section of the revised statutes in relation to that subject, directs the issuing of a precept to commit the party to prison, at once, upon proof by affidavit of the personal demand of the costs, or other sum mentioned in the order, and of the refusal to pay the same. (2 R. S. 535, § 4.) Under this provision a demand of the party himself, and not merely from- his solicitor, must have been intended by the legislature. The complainants are not, upon these papers, entitled to a precept to commit the defendants to prison ; but must make a personal demand of the costs of them instead of their solicitor.

The motion must, therefore, be denie.d. But as this is a new question, arising under this statutory provision, I shall not charge the complainants with the costs of opposing the application.