Appeal of St. Joseph's Orphan Asylum

The opinion of the court was delivered by Strong, J. — The case of the appellants is a hard one, but that will not justify us in relieving them by casting an equal or greater hardship upon an officer of the court. It was at their instance that he was appointed an auditor, and that he performed the services for which they are asked to pay. That they are liable for his fees is beyond question. The Act of 29th March 1819 (Stroud & Brightly’s Purdon 68) provides that the fees of auditors are to be fixed by the court, and to be paid and taxed as other costs. They are to be paid, and they are to be taxed as other costs are taxed. Paid by whom ? The court may compel the losing party to pay them; but if they cannot be obtained from that source, the auditor is not to lose them. Indeed the Act of Assembly seems to look as if they are to be paid before they can be taxed as costs against the losing party. Costs are a party’s expenditures, and taxation of costs is presumably an adjudication of what he has expended. If he has paid the fees of an officer, he is allowed to charge them as costs. If he has not paid them, he is indebted for them until they are paid: Beale v. Commonwealth, 7 Watts 186; Moore v. Porter, 11 S. & R. 100. In a common-law court there can be no judgment in favour of an officer for his fees, and if they be not collected from the [537] loser, he can resort to the party who employed him by action. Not so in equity. There the whole proceeding is under the control of the court. More than one decree may be made in a single suit, and a chancellor is not obliged to resort to the aid of a court of law to secure the payment either of fees or costs. He may make such final or interlocutory decrees as to justice and equity may appertain. We think, therefore, there was no error in the order that the appellants should pay the auditor’s expenses incurred at their instance. The decree is affirmed.