
    William Clark et al. versus Micajah Reed et al.
    
    In general the prevailing party in a suit in equity is entitled to costs.
    Where, however, the plaintiff in equity had good reason to believe he had sufficient cause for bringing his suit, but upon the defendant’s answer it appears that such , cause did not exist, the plaintiff will not generally be held to pay costs, if the de fendant was in such a situation as to render it probable that he was amenable to the plaintiff upon equitable principles.
    But if the plaintiff knew all the facts in the case and made a claim in equity which was successfully resisted, he will be adjudged to pay costs.
    Thus, where several persons subscribed an agreement to pay money for the purpose of establishing a line of stage-coaches, but the instrument contained a stipulation that no subscriber should be liable to pay any assessment provided he chose t& abandon his share or shares to the company, and that a refusal to pay any assessment should operate as a forfeiture of his share or shares, and some of the subscribers who alleged that they had paid more than their proportion of the ex penses incurred and were liable for debts, brought a bill in equity for contribution against the subscribers who had refused to pay their assessments, charging them as partners, and the bill was not sustained, costs were awarded for the defendants.
    The defendants in such suit being very numerous and some having joined in then answers and others having filed separate answers, the main subject of controversy however being the same, viz. whether there was a partnership or joint liability, the Court directed, that in addition to one general bill of costs for the defendants, to be taxed as in an action at law, a specific sum should be taxed for each distinct answer filed to the original bill and to an amended bill.
    This was a bill in equity brought by Clark and six others, alleging that on or about the 4th of July 1825, the plaintiffs and divers other persons entered into partnership for the purpose of establishing and maintaining a line of stage-coaches between Boston and Greenfield, and that in execution of that project, horses, carriages, &c. were purchased by the partners, each of whom paid for that purpose $40 on each share subscribed or taken by him in the enterprise; that immediately thereafter divers of the partners abandoned and gave up their shares and wholly withdrew themselves from the company, they having the right so to do by the terms of the original subscription and agreement, and thereupon the remainder of the partners became interested in the property and enterprise, and agreed, each with the other, to share in the profits or losses which should accrue therefrom, in proportion to the number of shares therein taken by them respectively ; that the partners who remained and became exclusively interested after such abandonment, were the plaintiffs together wúh Reed and about fifty others (naming them and stating the number of shares taken by them respectively, nearly all of them being made defendants) ; that five of the partners have died (naming them and their respective executors and administrators) ; that the enterprise was kept in operation from the time of its commencement until about the 5th of November 1827, when the further prosecution thereof by the partners was discontinued and the property was sold by them ; that the enterprise proved to be very unprofitable ; that no adjustment of the partnership concerns has ever ■ been made by and between the partners ; that many and large debts are still outstanding against the partnership ; that the plaintiffs have severally expended more money and performed more services than their proportion, for which they have never been reimbursed or remunerated, and that they are still liable to be called upon for the payment of the outstanding debts ; and that they have repeatedly requested their partners to contribute their just proportion towards the payment of the debts and to come to a final adjustment of the affairs of the partnership, which request has not been complied with. The prayer of the bill is for an account and for relief.
    In an amended bill the plaintiffs allege, that after the enterprise was put into operation, the partners held meetings from time to time, at which regulations were adopted and officers chosen, &c. ; that the defendants attended many of the meetings and exercised the same powers and privileges as the complainants did ; that three assessments of nine, ten and six dollars were assessed in October 1825, and February and May 1826, upon each share, and that the defendants, as well as the plaintiffs, paid the same ; that the defendants, at all times during the period when the scheme was prosecuted, acted as members of the company, and none of them, until after the relinquishment of the enterprise, ever gave notice to the company of his intention to abandon to them his interest in the enterprise. The amended bill concludes with certain interrogatories.
    Numerous answers to each bill were filed, some by several of the defendants jointly, and others by other defendants separately ; and different defendants employed different counsel. Most of the defendants deny that they entered into partnership with the plaintiffs, but they state that in March or April 1825 they were requested to contribute a sum of money for the purpose of assisting in establishing a line of stages from Greenfield to Princeton, and they accordingly subscribed certain sums specified, -most of the subscribers $ 25 each ; that on or about the 4th of July 1825 a subscription paper was signed by several of the defendants, which was as follows ; — “ Whereas it is contemplated to extend the stage now running from Greenfield to Princeton on to Boston, and whereas it is contemplated to raise the sum of $ 1260 to effect the same, to be divided into eighty-four shares of $ 15 each; — We the undersigned mutually promise and engage to take the number of shares set against our respective names in aid of the aforesaid object, to be paid one half in three months and the other half in six months, provided the number of shares aforesaid are all taken up ; and no subscriber shall be liable to pay any assessment, provided he chooses to abandon his share or shares to the company ; and a refusal to pay any assessment which may be thought by a majority of the company or proprietors necessary, shall operate as a forfeiture of his share or shares ; ” they further state, that after subscribing this paper, they abandoned their shares and have refused to pay the assessments imposed by the company on their shares.
    
      Oct. 11th.
    
    
      Oct. 7th
    
    The bill was dismissed for want of jurisdiction, the case showing no partnership, and the defendants claimed costs.
    Jlshmun, (with whom were Newton, Weed, Draper, Brooks and Bemis,) for the defendants,
    cited on the question of costs, Saunders v. Frost, 5 Pick. 271 ; Mason v. Waite, 1 Pick. 452 ; Ewer v. Beard, 3 Pick. 64 ; West v. Brock, ibid. 303.
    
      J. Davis, for the plaintiffs,
    cited Eastburn v Kirk, 2 Johns. Ch. R. 318 ; Getman v. Beardsley, ibid. 274; Burford v. Lenthall, 2 Atk. 552 ; Skirrett v. Jlthy, 1 Ball & Beatty, 435 ; Demarest v. Wynkoop, 3 Johns. Ch. R. 147 ; Staines v. Morris, 1 Ves. & Beames, 16 ; Ward v. Johnson, 13 Mass. R. 148 ; Meagher v. Bachelder, 6 Mass. R. 444.
   Putnam J.

delivered the opinion of the Court. By the statute of 1798, c. 77, this Court is at its discretion to award costs to either party, as equity may require. The allowance or refusal must therefore depend upon- the circumstances of each case. •

We adopt the general rule, that the prevailing party is to have costs, as applicable to suits in equity as well as at law. It will be applied unless the losing party can show that equity requires a different judgment. If it should appear that the plaintiff had good reason to think the respondent was liable upon equitable principles to pay money, to perform specific contracts, or to make discovery, and it should, upon hearing of the answer, appear that no such cause existed, as the plaintiff had reason to suppose did exist, the Court would not award costs against him, if it appeared that the respondent was in such a situation as to render it probable that he was amenable to the call of the plaintiff upon equitable principles. On the other hand, if it should appear that the plaintiff knew the whole ground and made a claim in equity which was successfully resisted by the respondent, it would seem that costs should be allowed as well in equity as at law. The mere change of the forum, should not in reason make any difference in the question of costs. If it should appear that both parties were in fault, as in Saunders v. Frost, 5 Pick. 274, the Court would not give costs to either. We are aware of the impossibility to state any general rule which should govern the opinion of the Court. It is an important and troublesome duty, to ascertain what sound discretion requires to be done, under the facts proved, in each case.

We proceed to examine the claims of the parties as to costs in the case at bar.

The respondents have prevailed. They are entitled to costs, unless the plaintiffs can satisfy the Court, that under the circumstances proved the Court should, upon equitable principles, otherwise adjudge. But upon reexamination of the papers in the case, w'e think the decision should be in favor of the respondents, even if they had the burden of proof upon themselves.

The original agreement or association in March 1825, bound the subscribers to contribute $25, and a subsequent one contained an engagement for the payment of $ 15 more on a share. But it was expressly agreed in the subscription paper, dated July 4, 1825, that no subscriber should be liable to pay any assessments provided he chose to abandon his share or shares to the company, and that a refusal to pay any assessments which might be thought by a majority of the com-, pany or proprietors to be necessary, should operate as a forfeiture of his or their shares. The associates were to pay $40, viz. 25 on the first subscription paper and 15 on the other, and such assessments as should thereafter be made, if they pleased; but were at liberty to abandon the enterprise at any time thereafter, upon forfeiting the money they had already paid, for the use of the company.

Now it is difficult to imagine a contract to be more cautiously framed, to prevent a general partnership in the enterprise, 'than this was.

The other subscription papers stated the number of shares and the amount for which the subscribers severally became responsible.

All these facts were known to the plaintiffs, and yet they have endeavoured to implicate and charge the subscribers, who refused to pay, and who abandoned by their refusal, as if they had undertaken to pay their proportion of all the expenditures and great losses which those who chose to proceed in the enterprise, have made and sustained. We sincerely regret that these losses have happened, for the undertaking appears to have been one in which the interest and convenience of the public entered largely into the motives of the subscribers. But we are to settle the question between the parties before us according to equity. And we see no reason why those who chose to abandon the concern, might not do it with perfect good faith ; and as they have prevailed under such circumstances, we are clearly of opinion that they are entitled to costs.

Considering it a case for costs, a more important question arises, how they shall be taxed. Cases in chancery are so various, and the claims on the discretion of the Court depend upon circumstances so numerous and so widely different, that it is difficult to lay down any rule, in any considerable degree general in its application.

It may be taken as a presumption applicable in many, perhaps in most cases, that the substantial grounds of defence in a suit in equity, are the same, so that in effect it involves one controversy between the parties. It would follow from this view, and from analogy to the practice at law, that in general, one bill of costs only will be allowed, reserving to the Court the power of making such further allowance as the circumstances of the case may require, where there has necessarily been unusual expense incurred, or where there is such real diversity of interests among the respondents, or such distinct and independent grounds of defence, as render the defences substantially as well as formally distinct, and make it proper to apply to distinct agents, solicitors and counsel.

In the case at bar, where the respondents are very numerous, and resided at some distance from each other, where some have joined and some have severed in their answers, where however the great subject of controversy is the same, viz. whether there was a partnership or joint liability, the Court are of opinion, that they cannot better reach the justice of the case and give a reasonable indemnity in costs, than by considering, that in addition to one regular bill of costs to be taxed as at law, there shall be taxed for each separate answer three dollars ; considering the answers to the original and to the amended bills, as separate answers. 
      
       By Rev. Stat. c. 121, § 20, in all suits in equity and in all civil suits, in which no provision is expressly made by law, the subject of costs is wholly in the discretion of the Court; but no greater sum is to be taxed, than is allowed for similar charges in suits at law. See St. 1841, c. 129; Wright v Dame, 1 Metc. 237; Bryant v. Russell, 23 Pick. 508; Sawyer v. Baldwin, 20 Pick. 378; Pratt v. Bacon, post, 495.
     