TOWNSEND. EQUITABLE LIFE ASSOCIATION. defendants for her. Prays that an injunction be issued against all of the defendants, and a decree rendered in her favor against the insurance company for the face of the policy. The material allegations of the complaint are denied by the insurance company in its answer; and it files, as a cross complaint, a bill of interpleader, making all necessary allegations against the plaintiff and the beneficiary, accompanying it with a tender of the $5,000, which was ordered to be deposited in the registry of the court, and there to be held subject to its further orders. The cross complaint prays to be discharged upon the depositing of the money, with a decree for its costs, including a fee for its solicitor of $100. A decree was entered, upon the cross complaint and the answers thereto, discharging its orator, and allowing it all of its general costs; but the determination of its right to recover its solicitor's fee was reserved for the judgment and further order of the court. The question for consideration now arises upon the interpleader's motion for the allowance of its solicitor's fee as a part of its costs. Messrs. Ratcliffe & Fletcher, for plaintiff. Mr. Jacob Trieber, for defendant and interpleading corporation. Mr. Morris M. Cohn, for all other defendants. THE CHANCELLOR: It is conceded that the amount, allowance of which is sought, is reasonable, and the only question for determination is, whether, according to the rules of equity practice, one who files a bill of interpleader is entitled to his reasonable solicitor's fee as a part of his costs. 1. Interpleader -Costs. Costs are either between party and party, or between solicitor and client. The first are denominated ordinary or general costs, and the latter extraordinary costs. TOWNSEND v. EQUITABLE LIFE ASSOCIATION. Mr. Daniel, in his treatise on Equity Pleading and Practice, discussing costs on a bill of interpleader, announces the doctrine, that "where the plaintiff has brought a bill of interpleader, properly and in good faith, as against both defendants, he will be entitled to his costs." In the same section of the treatise, however, he says: "Costs are in the discretion of the court, but are generally as between party and party." Thus showing that when he says "where the plaintiff has brought a bill of interpleader as against both defendants, he will be entitled to his costs," he refers only to ordinary costs.1 Costs General * * * This doctrine is hoary with age. It has been adhered to by a considerable number of courts of last resort; though there are others which announce the and extraordinary. modern doctrine to be, that the plaintiff in a bill of interpleader, properly and in good faith filed, should be allowed, as extraordinary costs, a reasonable fee for the expense of his solicitor; and that upon the hearing of the interplea the court should adjudge costs of the entire proceedSame-Solici. ing against him whose wrongful conduct, or false claim to the property or fund, occasioned the necessity of filing the bill of interpleader. That is the contention of the cross complaint in this case; and to sustain its contention its learned solicitor has referred me to several cases.2 tor's fees. The case from Missouri is in point, and sustains the learned counsel's contention. As to the New York case it need only be said that the allowance of counsel fees was based upon a statute of that State, and a rule of practice in its court of chancery, sanctioned by the statute. The Massachusetts case was one in which a woman had two nephews whose names were Joseph White Sprague and Joseph Sprague Stearns. She made a will containing a (1.) 2 Danl., Ch. Pr. (6th. Am. Ed.), * 1569, 1570. (2.) Christian v. Life Ins. Co., 62 Mo. App., 35; Ger. Exc. Bank v. Comm'rs, 6 Abb., N. C., 394; Morris v. Stearns, 131 Mass., 389; La. State Lottery Co. v. Clark, 16 Fed., 20. TOWNSEND v. EQUITABLE LIFE ASSOCIATION. bequest to "Joseph S. Sprague;" and the executor, not knowing certainly whom she intended to make her legatee, filed a bill of interpleader against the two, praying the court's direction as to whom he should pay the legacy. The decree directed the payment out of the general fund, as extraordinary costs, of a solicitor's fee for filing the bill of interpleader and conducting the litigation; but assigned as its reason therefor that the difficulty was created-that is, the necessity of filing the bill to determine to whom the legacy was due-was created by the testatrix herself. The case in 16 Federal Reporter, decided by Judge Pardee, if the real character of the decision must be determined from the language of the opinion, sustains the contention of the cross complainant. But a critical examination of the facts. in the case, and an analysis of the decision, convince me that the court did not decide all, or just that which, the language of the judge's written opinion would indicate. In that case the two defendants to the bill of interpleader were equally at fault, each claiming to own, and each having sued the cross complainant in suits at law for the whole of the amount involved, when, as a matter of fact, each owned, and was allowed to recover, only one-half of it. By reason of their equally false claims, and equally unmeritorious suits at law, they drove the lottery company to the expense of defending those actions, as well as created the necessity of instituting the suit in equity on the bill of interpleader; and it was in perfect keeping with a proper sense of justice to compel them to bear proportionately the burdens imposed by their equally fraudulent demands, which was done by the court by allowing, as extraordinary costs, the solicitor's fee and deducting it from the common fund. But suppose one of the defendants to the bill of interpleader had made no false claim and had rightfully recovered the entire sum claimed by him. Why should a court of equity compel him to pay the extraordinary costs of the interpleader's TOWNSEND v. EQUITABLE LIFE ASSOCIATION. solicitor's fee, and render judgment against his codefendant for the sum thus paid? If it were due at all, why not adjudge the extraordinary costs, in the first instance, in favor of the interpleader against the defendant who should ultimately pay it? Why the necessity, or in what consists the equity, of such methods of indirection and circumvention? The prevailing defendant is as free from fault as the prevailing interpleader. I am unable to see any propriety or justice in appropriating funds which the court doth adjudge to belong to one defendant, who is himself without fault in the premises, to the payment of costs due the plaintiff by another whose, and only whose, unfounded, false claim created the necessity of its accrual. I am aware that those courts which adhere to the doctrine of the right of recovery of such costs out of the fund in court, proceed upon the theory that, as the interpleader is discharged by the decree in his favor, it must settle all of his rights involved in the litigation, including the amount, and from what source, or party, he has the right to recover costs; and that this cannot be done if he be compelled to await the determination of the issues between the defendants, or control of costs if any portion of the controversy be reserved even after decree. for further orders. The fallacy of such theory consists in its denial of a chancery court's jurisdiction and control of all matters of costs after decree passed, when that control is, and according to established rules of equity practice properly may be, reserved in the decree itself.33 Chancery has So, if I concurred in the opinion expressed by the interpleader's solicitor as to his client's right to recover extraordinary costs, whatever might be proper to do on the final hearing of the interplea, in awarding extraordinary costs in favor of the cross complainant, against the defendant whose wrongful conduct or false claim has caused its accrual, it is not necessary, or proper, to make an order as is sought, before the determination of the merits of the defenses to the bill of interpleader. But, recurring to the right, whatever may be the (3.) England v. Files, Auditor, 45 Ark., 530, 535. TOWNSEND v. EQUITABLE LIFE ASSOCIATION. doctrine of the Federal and some other courts on the subject of allowing an attorney's or a solicitor's fee, in either an action at law or a suit in equity, as a part of the taxable costs, damages or expense, to be paid by the unsuccessful litigant, and whatever my individual opinion of the equity involved in the contention, as an abstract proposition, might be, the Supreme Court of Arkansas, whose opinions this court in all matters should respect and follow, has more than once decided that, in an action at law, attorney's fees cannot be recovered as a part of the taxable costs, damages, or expenses of the successful party. And that the rule obtains, generally, in suits in equity.5 practice Extra - ordinary costsRule stated. There are in equity, of course, exceptions to the rule. But the facts of the case under consideration do not bring it within the spirit of either of the exceptions, or within the control of any principle which underlies, or forms the basis of, any of its recognized exceptions. That courts of equity sometimes should, and frequently do, order extraordinary costs, in favor of one party to be paid out of another's Same-Equity funds in court, is indisputable. But it is rightfully done, either as a penalty visited upon the one party, for some wrong which he has done the other and which constitutes the cause for ordering the funds into court; or as a compensation equitably due one party for service rendered in the recovery of funds brought into court to the use of another; or as a compensation, equitably due one party, for service rendered in converting property into money and subjecting it to the demand of a lienor or the debt of a creditor; or for service rendered in the discovery or uncovering of assets fraudulently concealed, and subjecting them to the use of another. In this case we have no such state of facts as either of those mentioned; but we have, as bearing upon the right of (4.) Patton v. Garrett, 37 Ark., 605; St. L., I. M. & S. Ry. Co. v. Williams, 49 Ark., 492, 495. (5.) McDaniel v. Crabtree, 21 Ark., 431, 435; Oliphint v. Mansfield, 36 Ark., 191; Jefferson v. Edrington, 53 Ark., 545, 569. |