(3) Counsel fees may be allowed as damages in cases where there is contractual liability. Such liability may exist where the contract is to be interpreted as expressly providing for their payment, as in injunction bonds (Derry Bank v. Heath, 45 N.H. 524; Solomon v. Chesley, 59 N.H. 24) and in sheriffs' bonds (Hoitt v. Holcomb, 32 N.H. 185, 211); or it may be implied in some cases of indemnity, as where the party indemnified calls in the indemnitor to defend a suit upon the obligation the latter has agreed to pay (Fairfield v. Day, 71 N.H. 63). It may also be implied in cases where expenses by one of several interested parties have tended to the common benefit of all and the one may have contribution from the others (Rollins v. Rice, 59 N.H. 493, 498). (4) Counsel fees other than statutory costs may also be allowed to a stakeholder out of the res, as (a) in the case of a trustee's petition for instructions (Rollins v. Rice, supra), (b) in petitions for partition and (c) in bills of interpleader, where the stakeholder may have costs attendant upon his bringing the fund and the question of the rights of adverse claimants into the court for adjudication (Farley v. Blood, 30 N.H. 354, 374), counsel fees sometimes being allowed as a charge against the fund.
In Derry Bank v. Heath, 45 N.H. 524, the injunction stayed a suit at law; and recovery was allowed for expenses in that suit, while so delayed. There is no suggestion of liability for other expenses in that action. Solomon v. Chesley, 59 N.H. 24, was a suit on a bond given in an equity proceeding, the sole object of which was to restrain the prosecution of a suit at law. Of course the counsel fees paid in defending that bill concerned the injunction and were properly allowed.
Although in a few instances the question of the amount of the damages has been submitted to the jury or otherwise determined in an action at law on the bond, it has been for the reason that neither party objected, and the attention of the court was not called to the subject. Derry Bank v. Heath, 45 N.H. 524; Towle v. Towle, 46 N.H. 431; Solomon v. Chesley, 59 N.H. 24; Jackman v. Eastman, 62 N.H. 273; Gage v. Porter, 64 N.H. 619. Generally, the court that hears the principal cause has, if requested, determined the question. It is the proper practice.
In its application, the law, as in various other cases, deals with the immediate cause, — the cause as distinguished from the occasion, — and looks at the natural and reasonably to be expected effects. Cowles v. Kidder, 24 N.H. 383; Hooksett v. Company, 44 N.H. 108; McIntire v. Plaisted, 57 N.H. 608; Solomon v. Chesley, 59 N.H. 24; China v. Southwick, 12 Me. 238; Lowery v. Western U. Tel. Co., 60 N.Y. 198; Rigby v. Hewitt, 5 Exch. 243; Blyth v. Birmingham Waterworks Co., 11 Exch. 781; Bank of Ireland v. Evans's Charities, 5 H. L. Ca. 389, 410, 411; Ionides v. Marine Ins. Co., 14 C. B. N. S. 269; Romney Marsh v. Trinity House, L. R. 5 Ex. 204; Holmes v. Mather, L. R. 10 Ex. 268; Sharp v. Powell, L. R. 7 C. P. 253; Pearson v. Cox, 2 C. P. Div. 369; Tutein v. Hurley, 98 Mass. 211; Bro. Leg. Max. 215. Actions for negligence may, for convenience of consideration, be separated into four classes, namely, — where, upon the occasion of the injury complained of (1) the plaintiff, (2) the defendant, or (3) neither party was present, and (4) where both parties were present.