Opinion
(June Term, 1841.)
Where a bill of injunction has been filed against two executors, and there is no necessity for the severing in their answers, separate costs should not be allowed to each.
If such has been the judgment in the court below, upon the dissolution of the injunction, and the case being continued as an original bill afterwards comes up to this Court, and the bill be dismissed, no attorney's fees will be allowed to be taxed for the defendant.
THIS was a bill in equity, filed in CUMBERLAND Superior Court at Spring Term, 1841. Answers were put in and other pleadings had until the Fall Term, 1840, when the cause was removed to the Supreme Court. The facts and state of the pleadings are sufficiently disclosed in the opinion of the Court.
No counsel appeared for either party in this Court.
The defendants, as the executors of Daniel McNeil, obtained against the plaintiff judgment at law on two bonds. The plaintiffs filed this bill and obtained an injunction restraining execution on the judgments. The plaintiff, in his bill, states that the two bonds were given by him to Daniel McNeil for two years rent of a sawmill and timber lands for the use of said mill; the mill being then out of repair the said McNeil was to put it in repair; that McNeil neglected to repair, and before the expiration of the first year of the term, and before he had used the mill or cut any timber from the land, the mill fell down and became a total ruin. The bill states that the parties then entered into a new arrangement, as follows: McNeil was to find timber and materials at the site of the old mill for the construction of a new mill, and was to furnish laborers. And the plaintiff, who is a millwright, was to conduct the work and to be paid for the same, and to have (345) and use the mill and the timber on the land for a space of time equal to the unexpired residue of the aforesaid term of two years. And it was expressly agreed that if the mill was not repaired or rebuilt as aforesaid the plaintiff was to be discharged from all liability on the aforesaid two bonds. The bill states that McNeil neglected to furnish timber, materials or hands for the rebuilding; that they then came to a final agreement that each should be discharged from both the aforesaid contracts, and the plaintiff particularly should be discharged from the payment of the two bonds. The defendants answer and state that the plaintiff gave the bonds for the two years rent of a grist and sawmill; that the mills were in repair at the commencement of the lease, and that the plaintiff agreed to keep them in repair during the term; that he took them into his possession and made considerable profits; that the dam was broken by a freshet in the stream in consequence of the negligence of the plaintiff's millers. They deny that their testator ever agreed to rescind the contract and surrender the bonds or discharge the plaintiff from the payment of them. The injunction was dissolved. The answer was replied to and the bill retained as an original bill. The plaintiff has taken depositions and has now brought on the cause for a hearing. We have examined the depositions, and they entirely fail to establish the case made by the bill. There is no proof in the cause that McNeil ever agreed to discharge the plaintiff from the payment of the two bonds. The bill must be dismissed with costs; no attorney's fee in this case to be taxed against the plaintiff as he paid two attorney's fees on the dissolution of the injunction, when there was no necessity for separate answers by the executors.
PER CURIAM. Decree accordingly.
(346)