Madison County IL Archives Court.....Adams, V Payson 1849 ************************************************ Copyright. All rights reserved. http://www.usgwarch.org/copyright.htm http://www.usgwarch.org/il/ilfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 22, 2008, 1:12 am Source: Reports Of Cases Illinois Written: 1849 O. M. Adams v. William R. Payson. Error to Madison. 1. Costs — counsel fee — in chancery. Where a master included a fee for $30 00 to the complainant's solicitor, upon a reference to him to compute the amount due, upon a bill taken pro confesso, where the bill did not claim such fee, it was decided to be error.(l) This was a bill in chancery, in the Madison county circuit court, to foreclose a mortgage filed by Payson against Adams, which came on to be heard before Koerner, judge, at the August term, A. D. 1848, and a decree of foreclosure was allowed. The facts of the case, and the errors complained of, will be sufficiently stated in the opinion. L. Davis and N. Edwards, for plaintiff in error. L. P. Casey, for defendant in error. Caton, J. In this case, we have again to reiterate a principle so familiar that authority in its support would be superfluous. This bill is to foreclose a mortgage, given to secure, among other things, the payment of a promissory note; the non-payment of which is alone complained of. The bill was taken for confessed, and it was referred to a master, to compute the amount due upon the note; and to assess and tax the fee of the complainant's solicitor, according to an agreement filed in the cause, by which the defendant bound himself to pay such fee, in case the complainant had to foreclose the mortgage. This agreement was executed some time after the mortgage, and before the commencement of this suit, and is not referred to in or made a part of the bill; nor was it ever placed upon the files of the court, till more than two months after the bill was filed. The master reported the amount due upon the note, at $464 47; and that he had taxed the fee of the complainant's solicitor at thirty dollars. For both of which sums the decree was rendered. That portion of the decree, alone, is assigned for error, which directs the defendant to pay the solicitor's fee of thirty dollars. That part of the decree must undoubtedly be reversed. No claim for that fee is set up in the bill, and the defendant had no opportunity of defending that claim. The court could not give the complainant more than he asked, and showed, by his bill, that he was entitled to. That portion of the plea complained of must be reversed, and the residue stand affirmed. The costs to be paid by the defendant in error. Decree modified. ---------- Cited — Eimer v. Eimer, 47 Ill., 373; Wilhite v. Pearce, 47 Ill., 413; Conwell v. M'Cowan, 53 Ill., 363; Augustine v. Doud, 1 Brad., 588. (1) Solicitor's fees, in chancery, can not be taxed as costs; the discretion of the court herein, is confined to statutory allowances, Constant v. Matteson, 22 Ill., 546; Conwell v. M'Cowan, 53 Ill., 363; Campbell v. Campbell, 63 Ill., 502, and, although there may be stipulation for the allowance thereof, as in a mortgage, these must be claimed in the bill, or their allowance, even on default, will be error, Augustine v. Doud, 1 Bradw.,588. By statute of 1869, L. 1869, p. 368, see R. S., 1874, p. 753, § 40; Cothran's Stat., 1054, § 40, in proceedings for the partition of land a reasonable solicitor's fee may be taxed and apportioned among the parties, Strawn v. Strawn, 46 Ill., 412; Eimer v. Eimer, 47 Ill., 373; Wilhite v. Pearce, 47 Ill., 413; but, only when the proceeding inamicable, Stenger v. Edwards, 70 Ill. 631; wherefore, it was error to decree such fee in a proceeding which developed into a case of adverse parties, so far, at least, as to services rendered after contest arose, Lilly v. Shaw, 59 Ill., 72. When such fees are allowed the measure of the award is the usual charge among the profession, the chancellor using his own judgment in fixing the amount, Dorsey v. Corn, 2 Bradw., 633. Additional Comments: Reports of Cases Argued and Determined in the Supreme Court of the State of Illinois, from November Term, 1849, to June Term, 1850, Both Inclusive. By Ebenezer Peck. Volume XI. Annotated by Henry Binmore, of the Chicago Bar. CHICAGO: CALLAGHAN & CO. 1886. File at: http://files.usgwarchives.net/il/madison/court/adams64gwl.txt This file has been created by a form at http://www.genrecords.org/ilfiles/ File size: 4.6 Kb