
    Foster v. Verner, Appellant.
    
      Costs in equity — Division of — Insolvency—Practice.
    Where in an equity suit plaintiff fails to sustain his bill and the relief prayed for is denied and he is insolvent, it is unjust to throw all the costs on the defendant by decreeing that the parties jointly pay the master’s fee and record costs. In such case the decree will be modified so as to place the master’s fee and costs equally upon the parties.
    Argued Oct. 3, 1892.
    Appeal, No. 240, Oct. T., 1891, by defendant, from decree of C. P. Clarion Co., Aug. T., 1887, No. 2, ordering plaintiff, J. S. Foster, and defendant, J. W. Verner, to jointly pay the master’s fee and record costs in the case.
    November 7, 1892:
    Before Paxson, C. J., Steebett, Gbeen, Williams, McCollum, Mitchell and Heydbick, JJ.
    Partnership bill for dissolution, an account, appointment of a receiver, and general relief. An answer was filed, and B. J. Reid was appointed master, Dec. 6,1877. In 1890 the master filed his report, finding a balance due plaintiff; this, upon exceptions, the court refused to confirm, in an opinion in part as follows, by Mehabd, P. J.:
    “ The investigations of the learned master and of the court, instead of leading to the discovery of the truth, serve to show that during their four years’ business, the parties to this suit, with mutual fault, so covered up the truth, with errors and confusion, that even its main outlines cannot be found. Hence neither one has ground to ask a balance in his favor.
    “ It is now considered that there is not evidence to show a balance of the partnership account in favor of either plaintiff or defendant: hence a decree of a balance is refused.
    [“ And it is further considered, ordered and decreed that the parties jointly pay the master’s fees, which are fixed at twelve hundred dollars, and likewise the record costs of this case, and that each party pay the costs incident to the subpoenaing and attendance of his own witnesses.”] [1]
    
      Errors assigned were, inter alia, decree, quoting it.
    
      J. T. Maffett, with him W L. Corbett and Bon C. Corbett, for appellant.
    
      B. J. Reid, master, pro interesse suo.
   Per Curiam,

The only question here refers to the costs, including the master’s fee of $1,200. The decree of the court below is that “ the parties jointly pay the master’s fees, which are fixed at twelve hundred dollars, and likewise the record costs of this case, and that each party pay the costs incident to the subpoenaing and attendance of his own witnesses.” If both parties were pecuniarily responsible, this would practically place one half the costs upon each, as if one were compelled to pay the entire costs he could collect one half thereof from the other. It so happens that the plaintiff below is insolvent, and if the order stands in its present shape the entire burden falls upon the defendant.

Inasmuch as the plaintiff failed to sustain his bill, and the relief prayed for was denied, it would be unjust to throw upon the defendant all the costs of this protracted litigation. It is hard upon the master to lose one half his fee after ten years’ labor, but we do not see our way clear to remedy this difficulty by throwing it upon the defendant.

It is now ordered that the decree below be so modified as to place the master’s fee and record costs equally upon the parties. With this modification the decree is affirmed and the appeal dismissed at the costs of the appellant.  