Our statute is not unlike those in a number of other states which I have examined. In a well considered case in the court of chancery of New Jersey, McMullen v. Doughty, 68 N.J. Eq. 776, 55 A. 115, the court had under consideration a statute making it lawful to include in the plaintiff's costs a counsel fee to be fixed by the chancellor in partition cases. The court used this language: "Some question has been raised as to the practice in allowing a counsel fee to the solicitor of the complainant out of the whole estate in cases where the defendant is represented by counsel.
The fact that attorney's fees are granted to successful plaintiffs but not to winning defendants does not raise a due process or equal protection problem if the classification is reasonable in other respects. McMullen v. Doughty, 68 N.J. Eq. 776, 55 A. 115, 284, 64 A. 1134 (1903); 20 Am.Jur.2d Costs § 80. The positions of plaintiff and defendant in a lawsuit are sufficiently dissimilar to justify differences in treatment.
Under section 91 of our Chancery Act (1 Comp.St.1910, p. 445, § 91), a counsel fee, on order of the Chancellor, may be included in the taxed costs and thereupon becomes a part thereof. McMullin v. Doughty, 68 N.J.Eq. 776, 55 A. 115, 284, affirmed 68 N.J.Eq. 782, 64 A. 1134. It is true that a solicitor in a cause is not a party to it in the same sense as a complainant or defendant, but he is a party thereto in his own right, as an "unpaid solicitor."
It is to be observed that there is here no provision for allowance to counsel for parties other than those who obtain an order or decree. This act of 1910 is an amendment to section 91 of the Chancery Act (1 Comp. St. 1910, p. 415), which was construed by Vice Chancellor Grey and Chancellor Magie in McMullin v. Doughty, 68 N. J. Eq. 776, 782, 55 Atl. 115, 284, 64 Atl. 1134, affirmed by the Court of Errors and Appeals. It was there pointed out that the provision was for the allowance of a counsel fee to the successful complainant, and under the act of 1910 there can be no allowance for counsel participating in the cause who does not take, or who is not at least included in, the order or decree, and whose client does not get a substantially favorable result.
Counsel for the complainants must look to his clients for his extra allowance in this cause. That it is entitled to an allowance is clear (Strong & Sons v. Mundy, 52 N. J. Eq. 833, 31 Atl. 611), and, if I were at liberty to award it, I would hear the parties on the question of the amount of such counsel fee, and in advising the decree in this cause would report to the Chancellor what is a reasonable sum to be allowed (McMullin v. Doughty, 68 N. J. Eq. 776, 780, 55 Atl. 115, 284, 64 Atl. 1134). The execution may be issued to a master, owing to the involved and complicated distribution to be made of the proceeds of sale.
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. 776, 55 Atl. 115, 284, 64 Atl. 1134, the Court of 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.