Porch v. Agnew Co.

65 A. 485, 72 N.J. Eq. 319, 2 Buchanan 319, 1907 N.J. Ch. LEXIS 155

• Court: New Jersey Court of Chancery
• Decided: January 5, 1907
• Status: Published

Opinion

Leaking, V. C.

Section 91 of the Chancery act (P. L. 1902 p. 540) allows a counsel fee to be fixed by the chancellor and included in a complainant’s taxable costs. In McMullin v. Doughty, 68 N. J. Eq. (2 Robb.) 776, the court of errors and appeals sanctioned the allowance, under this section, of a counsel fee to complainant in a partition cause prosecuted in this court. The allowance of a counsel fee to the present applicant should manifestly be made if authority can be found to support it; but the statute, in terms, applies only to complainants, and I am unable to discern any legislative purpose to extend the provisions of the section in question beyond the primary and natural significance of the language used. One who files a claim with a receiver, and who is afterwards obliged to support his claim before this court on appeal, occupies a position similar to a complainant in a bill in equity to the extent that he has the affirmative of an issue to sustain; but such similarity is not based upon any principles peculiar to equitable remedies. His claim-may be,‘and usually is, a strictly legal claim, with no inherent element to confer equitable jurisdiction. The claim now in question was such a claim. The procedure is purely statutory and is, by the statute, described as “summary.” It is clear that the present applicant can only be brought within the provisions of the section by treating the section as an enactment intended to apply to all successful litigants in a court of equity except defendants. I am unable to find any justification for so broad an interpretation of the section. The motion must be denied.