Greene & Cramer vs. Wheeler, 9 Paige Ch. 608

The Chancellor. I am not aware' of any practice of this court allowing costs, as a matter of course, in a case like the present, as between party and party. There is no doubt, however, of the power of the court to give costs to a party who attends to oppose a taxation, pursuant to notice, and where the adverse party, without any reasonable excuse, neglects to proceed with the taxation in conformity with such notice.

In this case I infer from the affidavits, that the defendant’s solicitor had actually been subjected to the expense of preparing an affidavit and of sending it to his agent, to oppose the taxation, before he was aware of the fact that the bill had been made out and noticed for taxation through a mistake of the copartner of the complainant’s solicitor. But the origin of such mistake, and the reason why the bill as then made out was not presented for taxation is now satisfactorily explained, by the affidavits on the part of the complainants.

Under such circumstances it would be adopting a new practice to charge the complainants with the costs of the attendance of the adverse party to resist the taxation. The application must therefore be denied, but without costs to the complainants.