Neel v. Neel

1 Grant 171, 1854 Pa. LEXIS 227

• Court: Supreme Court of Pennsylvania
• Decided: December 12, 1854
• Status: Published

Opinion

The opinion of the court was delivered

by Lowrie, J.

— We could not disturb this taxation of costs if we would, for we have not been furnished with the means of correcting it. And perhaps we would not if we could, for, to say the least, it is very unusual in chancery practice to allow appeals from decrees on mere questions of costs. Besides this, if a party thinks he may have to complain of the costs, he ought to see that they are taxed before he brings up his appeal from the decree, and not have two appeals in the same case. But it will do no harm to answer the complaint here made.

The authority to tax costs according to the exigency of each case, or to a general rule, has always been an element of the chancery jurisdiction, and it is not withheld from our courts in chancery eases. Until the court below established a Pee Bill, costs were necessarily a matter of discretion, and were taxed with the aid of the analogies of our costs at common law. The defendant in this case had a right to have his costs taxed according to that discretion, and the plaintiff was not wronged, if before they were taxed, the court defined their discretion by a Pee Bill, and then taxed the costs by it. That which is a proper measure of discretion for all cases is proper for this. If the costs could not have been given without the Pee Bill, then it would be a retroactive regulation if it affected past cases. We do not perceive that there had been any such previous taxation of the defendant’s costs as affects the proceeding complained of.

Appeal dismissed at plaintiff’s costs.