
    John M’Donald and Wife v. Thomas Williams and Elias Durant, Adm’rs of Jos. Durant, et al.
    Under an order in a cause requiring the creditors of an estate to come in and establish their demands before the commissioner, several creditors, some of whom were represented by one solicitor, and the rest by another, came in and proved tjieir demands. To the commissioner’s report on these demands general exceptions were filed upon grounds, which were common to all the creditors. Held, 1. That under the fee-bill of 1827, the demand of each creditor was to be considered a separate and independent suit, and that the solicitor was entitled to the fee of $5, allowed by the act, for attendance at the,reference upon each demand, for every day’s necessary attendance. 2. That the solicitor could only charge, under the act, for one set of exceptions, the grounds of exception, being common to all the demands.
    Where in such a case different and independent exceptions are filed at .the instance of different parties, the solicitor would be equally entitled to tax his costs on each, as for his attendance on the reference; so too, if the creditors are represented by different solicitors, each would be entitled to his costs, if he performed the services indicated by the acf, as each creditor has the right to be heard by counsel of his own selection.
    
      Before JOHNSTON, Chancellor, at Sumter, Jan. Term, 1839.
    The complainant’s filed their bill in this case against Williams & Durant, adm’rs . of Jos. Durant, deceased, on 11th January, 1836, for an account and partition of his estate; the said defendants answered on 20th February, 1836, alleging that there were a number of unsettled demands against the said estate, and praying for an order that the creditors of the said Jos. Durant should be restrained from suing at law, and be called on by advertisement to present and establish their demands before the commissioner in equity for Sumter district, which order upon their application was passed at February term, 1837, requiring creditors of the said estate so to present and establish their claims on or before the 15th June then ensuing. On this day several creditors appeared before the commissioner, and represented, by Mr. Moses, their solicitor, submitted their demands — some of which were then established — and others continued,-and established on a further day. At January term,. 1838, the commissioner submitted his report, setting forth certain claims established before him against the said intestate, and upon exceptions thereto filed and argued, the said report as to the creditors now before the court was sustained and the following order passed: — “ John M’Donald et ux et al. v. Williams & Durant, adm’rs of J. Durant. On motion of Mr. Moses, solicitor for some of the creditors of the said intestate, ordered that such parts of the report of the commissioner on the claims of the creditors not excepted to, be confirmed. Also, ordered that the creditors of Joseph Durant, whose claims have been passed respectively, have leave to issue execution’for the same, with interest up to the time named in amended report — the interest to commence again from the time presented to the commissioner under the order in the said case, and that the costs on the claims of the said creditors in this court be paid by the administrators of Joseph Durant.” Under this order the commissioner taxed $10 for solicitors’ costs on each claim.passed by the court, to wit; five dollars for one day’s reference on each claim, and five dollars for argument on exceptions to each claim. At January term, 1839, the defendants moved to open and correct the taxation of costs, made by the commissioner in the said case.
    1. Because the commissioner has taxed separate costs for references for each claim put in by creditors under the order of the court, though many claims were proved and disposed of at the same reference.
    2. Because costs for references ought to be taxed only for each day of reference'had before him in the cause.
    3. Because the commissioner taxed costs for argument of counsel on each claim of creditors on general exceptions to his report, although two counsel represented all the claims.
    4. Because the taxation of costs is contrary to law.
    Upon which the chancellor made the following order :
    “ On reading the exceptions upon the taxation of costs in this case by the commissioner upon the claims of the creditors of Joseph Durant presented in this case under the order of this court, it is ordered that said exceptions be sustained, and that the commissioner do correct the taxation.”
    From which order the said creditors appealed on the following grounds:
    1. Because the commissioner was right in allowing to everyone of the said creditors the costs of the reference attended by them respectively.
    2. Because every creditor was respectively entitled to the costs of every reference each day attended.
    3. Because the counsel of- each creditor was entitled to the costs of argument on the exceptions filed to the report on their respective claims.
    4. Because the said taxation of costs was not contrary to law.
   Curia, per Johnson, Chancellor.

This is a bill for an account and distribution of the estate of the defendant’s intestate. In the progress of the cause an order was obtained, requiring creditors of the estate to come in and establish their demands before the commissioner of the court, preparatory to the final settlement and partition of the estate. Under this order, several creditors, some of whom were represented by one solicitor, and the rest by another, came in and proved their demands. To the commissioner’s report on these demands, general exceptions were filed, and were common to the claims of all the creditors. The question submitted in the grounds of the appeal is, whether the solicitors of the creditors, who prevailed on the exceptions, are entitled to tax their costs for attendance on reference and exceptions to the report, for the exceptions in the case of each creditor, or for one reference and exceptions on all the case.

The act of 1827, out of which this question arises provides that the solicitors shall be entitled for “ each day’s attendance on reference before the commissioner five dollars — exception to the commissioner’s report, five dollars.” I am not aware in what way I can better illustrate that the demand of each creditor is a separate and independent suit, although the complainants are the same, than by stating the obvious circumstances that the creditors have no interest in common — that their demands must necessarily be established by independent evidence, and consequently that there is no necessary identity on the questions of law which may arise. They are, then, to all intents and purposes different cases — and in the terms of the act, the solicitor is entitled to the fee allowed for attendance on reference, in each case, for every day’s necessary attendance.

On the other branch of the question, I am equally clear that the solicitors áre entitled to tax their costs for only one set of exceptions, if as represented, they are common to all the cases.

The fees allowed by law were intended as a remuneration to the officers of the court for services actually rendered, and not for those which exist in imagination alone.- It is true, that they are often very inadequate, but the court have no authority to establish new, or enlarge the old. The fee allowed is for “ exceptions to the commissioners report.” -Entitling the exceptions in the name of all the creditors does not make them separate exceptions in each case, nor does, it impose more labor on the solicitor except the writing of the name of the creditor. The labor of drafting the exceptions, and of arguing them before the commissioner; and on an appeal to the court, are precisely the same as if one set of exceptions had been filed. Nor would the case be varied if the solictor had filed separate exceptions, if the grounds were the same in all, because it would be unnecessary, as the determination in one case would conclude all, and costs ought not unnecessarily to be increased; but,if on the .other hand, different and independent exceptions, at the instance of different parties, were necessarily filed, I am equally clear, that the solicitor would be entitled to tax his costs on each, for the same reason that he would be entitled to tax > his costs for attendance on reference — and I think, too, that when the creditors are represented by different solicitors, each would be entitled to their costs if they performed the services indicated by the act, for each creditor has the right to be heard by counsel of his own selection.

It is therefore ordered, that the order of the circuit court be reformed, and that the case be remanded to the commissioner to tax the costs according to the principles of this decree.

J. Johnston and Dunkin, Chancellors, concurred.  