Gregory v. Reeve

The Chancellor said, that he did not consider that he could give relief under the bill, for or against the parties, in their individual capacities; and that if there was any remedy, as between the two towns, it was at law, by mandamus, certiorari, or personal action. The following decretal order was then entered: “It is declared, &¿c. that the remedy (if any) by the present overseers of the poor of the town of Sand Lake, against the present overseers of the poor of the town of Berlin, for an alleged fraud committed by a former overseer of the poor of the town of Berlin, upon a former supervisor and overseers of the poor of the town of Sand Lake, in the apportionment of the money and poor belonging to thg. [234] town of Berlin, under the provisions of the act entitled, “ An act” 8zc. passed the 19th of June, 1812, appertains to a Court of Law, and not to this Court. It is, therefore, Ordered, &c. that the plaintiffs’ bill be dismissed, without costs to be taxed by either party, as against the other.” July 6th. The cause was this day re-heard, by consent, on the question of costs. Henry, for the defendants, cited 2 Madd. Ch. 415, 416. 2 Atk. 113. 11 Vesey, 462. 18 Vesey, 16. 4 Bro. C. C. 545. 1 Vesey, 582. Van Vechten, for the plaintiffs, cited 1 Johns. Ch. Rep. 166. and the cases there cited. 1 Johns. Ch. Rep. 566. 2 Johns. Ch. Rep. 65. 129. 520. 274. 317. 3 Johns. Ch. Rep. 477. The Chancellor said, he should allow the defendant his taxable costs, on the strength of the authorities of Holbrooke v. Cracraft, (6 Vesey, 706. note,) the anonymous case in 9 Vesey, 221. and the English rule of Lord Keeper Wright, in 1710. (Beames’ Orders, p. 320.) That it appeared from these cases, to be the English practice, to allow the defendant his costs, when he prevailed by the allowance of the demurrer ; and that practice was followed in Davoue v. Fanning. (4 Johns. Ch. Rep. 199.) The former decree was varied accordingly, in respect to costs.