Reynolds v. Baylor. The order in this case, imposing one half of the compensation of the Examiner and Master on the defendants, George and Parmenus Smith, is set aside, and the rule for an attachment for non-compliance therewith, is discharged. And it is further ordered that the Examiner and Master certify to the court what portion of his compensation of three hundred dollars represents his services as examiner, and how much thereof is properly chargeable to the defendants for taking testimony on their behalf; and thereupon let an order be entered imposing upon the plaintiff and defendants respectively, in the first instance, their proper shares of such examiner's fees; and upon the plaintiff such portion of said compensation as represents the services of the Master as such; this to be without prejudice to the ultimate disposition of the costs. ARCHBALD, J.-On the 3d September, 1885, Mr. Wells, the examiner, certified to the court that one hundred dollars of his fees were properly chargeable to the defendants. An order was thereupon made that this sum be paid by them within ten days after notice, without prejudice to the final disposition of the costs. The balance of his fees as examiner, and the whole of his fee as master, was by the same order imposed with like directions upon the plaintiff. The order was served personally October 9, upon the defendants, William Baylor and George Smith, and November 14, upon proof that it had not been complied with, the present rule for an attachment was taken. This raises an important question of practice, and I have therefore taken some time to consider it. It is rather strange that it has not long since been definitely settled. As pointed out in my former opinion in this case, each party to a suit is in the first 'instance responsible for his own costs. So far as either requires the assistance of an examiner to put in his case, so far are the charges for the services of such examiner to be borne by that party. If a separate examiner were appointed for each, as is sometimes done, this would more clearly appear, but it is none the less clear in the eyes of the law, when the same examiner acts for both. When he has finished taking the plaintiff's testimony, and begins to take for the defendant, he is in Reynolds v. Baylor. the sole service of the latter. His fees for such services must in the first instance be apportioned, and met accordingly. In the case in hand the examiner has certified that one half of his fees should be paid by plaintiff and one half by defendants, his services being in that proportion required by each. Mr. Baylor, one of the defendants, objects that none of this should be borne by him, because George and Parmenus Smith are the real defendants, and that he has been wrongfully brought in, as shown by the recommendation of the master, that the bill as to him be dismissed, and because but little of the examiner's services were required by him to put in his defense. On the other hand it is asserted that Mr. Baylor was present at every meeting before the examiner, and actively engaged in defending the suit. This is all somewhat aside from the point. Whether Mr. Baylor is rightfully or wrongfully in the case, I am not now to determine. The question is whether he is properly chargeable as one of the defendants with the proportion of the costs stated. The examiner has certified that the defendants (without distinguishing between them) have required one half of the services for which his bill has been presented and allowed. Prima facie this must be taken as correct. This certificate was made in compliance with the former order of the court, with notice of which I must hold Mr. Baylor affected. The order of the court based upon such certificate stands unattacked save by the assertions of counsel. Moreover the answer of the defendants is joint. Mr. Baylor does not sever in his defense. How can I go through the depositions and separate his case for him? There is, therefore, as the matter stands, nothing to show that the order directing the defendants generally to pay for these services in the first instance was not correctly made; until that is shown, the order is binding, and must be complied with. But can compliance be enforced by attachment? The acts complained of in the bill are tortious, and an injunction is sought to restrain them. It is said by Mr. Justice TRUNKEY in Church's Appeal (7 Out., 263), "Where a decree against a party is founded upon his tort, or upon his breach of duty as a trustee, the costs imposed upon him follow his wrongful acts." In that respect the case was distinguished from Pierce's Appeal (7 Out., 27), the opinion Reynolds v. Baylor. of the court being by the same learned justice. A final decree, therefore, imposing any portion of the costs upon the defendants in this case, would seem to be enforceable by attachment. But can an interlocutory order such as this proceed upon the same basis? To do so we must assume that the acts of the defendants will be shown to be tortious; but until the suit is finally determined, this must remain in doubt. Can we in the meantime, upon the mere theory or allegation of a tort, proceed as if it had been actually established? I am satisfied we cannot. To what such an assumption might lead is shown in the present case where we are asked to attach Mr. Baylor, although the master has recommended that the bill, as to him, be dismissed. Recalling, therefore, what I let fall to the contrary on the former occasion, when this case was before me, I am now of the opinion that whatever be the character of the suit, an attachment will not lie to enforce such an order as the one in question. This is not to be confused with an interlocutory order for the payment of costs, which have been imposed upon a party as a penalty for misconduct in the proceedings, or as a condition for relief from a default. An attachment in such cases is provided for in § 77 of the Equity Rules, but under what limitations it will be allowed, remains to be decided (Pierce's Appeal, supra). Such an order for payment of costs is, however, as absolute as if upon final decree, and the effect of the rule referred to is simply to give for the enforcement of such interlocutory order all the remedies provided for the enforcement in any case of a final decree. What, then, it may be asked, is the effect of such an order as the one in question? It is no more than a settlement in favor of the examiner of the compensation or fees to which he is entitled (cf. Peters v. Rand, 15 W.N.C., 539), and the parties to whom he may look for his pay in the first instance. Strictly speaking, such compensation or fees do not become costs until taxed in favor of the party who has paid, or incurred a liability to pay them (Musser v. Good, 11 S. & R., 248; Pierce's Appeal, supra). As between the officer of the court and the party, they merely represent the services which the former has rendered. It follows that while there may be a legal liability on McGinley v. McDonough. the part of the defendants to the examiner in this case for his services to the extent fixed by the order, that liability can not be enforced by an attachment of the persons of such defendants, or either of them. This may leave the question of such fees, when there is no fund directly to fall back upon, in an unsatisfactory condition for those of the profession who are called upon to perform these important duties; but logically I do not see how the conclusion here reached can be avoided. The rule to show cause why an attachment should not issue, is discharged. C.P. Lackawanna Co., 119 Oct. T., 1885. 12 Oct., 1885. McGinley v. McDonough. Where the defendant appears in response to a summons from an alderman, made returnable after too long a time, the appearance cures the irregularity. Act. 8 May, 1876, P.L., 139 (attachment for wages), does not authorize a writ of attachment to issue in a suit for board, in the first instance, but only after judgment has been regularly obtained. Certiorari to alderman. The alderman issued summons and attachment for board the same day, returnable nine days afterwards. Judgment was given for the plaintiff, whereupon the defendant took this certiorari. Bertholf, for defendant. ARCHBALD, J.-The attachment and summons in this case issued May 28, and were made returnable June 6, Or nine days after their date. This was irregular; but the McGinley v. McDonough. defendant appeared and was heard, thus curing the irregularity. This forces us to consider the question raised by the second exception, to wit, whether the Act of 8th May, 1876 (P.L., 139), authorizes a writ of attachment against wages to issue in a suit for board, in the first instance, or only after judgment has been regularly obtained. It has been decided by the learned President Judge of Luzerne County (Carden v. Scott, 1 Kulp, 196) that this act is not intended to provide a new form of process for the commencement of such actions, but that it merely allows of an attachment in execution against wages, upon a judgment for board first obtained. After a careful examination of the statute and the reasons for such interpretation of it, I am led to the same conclusion. This is not to say but what there are some indications in the act of a different purpose, and it is difficult to see how effect is thus given to the provision that justices "shall have jurisdiction of attachment in case" for the purpose of carrying out the intent of the act. But the construction, which would establish the writ of attachment, named in the act, as original and not execution process simply, is involved in the inconsistency of allowing the attachment of wages and not of other debts, and would authorize the issuing of a writ, upon a mere claim without affidavit or security. Without such intent clearly within the act, it is not to be presumed that the legislature designed to enact that which would be so out of harmony with the rest of the law. The alderman, therefore, had no jurisdiction to issue the writ of attachment by which the suit was instituted, and the judgment based thereon is void. Judgment is reversed, and all proceedings set aside. |