
    Otis vs. Forman.
    Where a defendant obtains a general decree for costs, at the final hearing, he is entitled to his costs of a successful motion, previously made, to dissolve the injunction, to be taxed as costs in the cause; although nothing was said by the court in reference to costs, upon the decision of that Application.
    The 199th ru.e, wmch provides for the amount of costs where the court directs a motion or petition to be granted or denied with costs, does not apply to such a case. For where the costs of a special motion are allowed as a part of the general costs in the cause, the several items of such costs are to be taxed as a part of the general hill; unless the court directs the contrary.
    
      Costs will not, in general, be given to a defendant upon the dissolution of an injunction, on bill and answer, where the bill was sufficient, upon its face, to entitle the to the
    A charge for engrossing a copy of affidavits used on a special motion, to keep, is not allowable on taxation.
    A party is not entitled to charge a separate solicitor’s and counsel fee upon an unsuccessful attempt of the opposite party to postpone the hearing of a motion to dissolve an injunction.
    A charge for filing the draft of an order is not taxable.
    
      Where a cause is brought to hearing upon pleadings and proofs, the counsel who actually attend are entitled to their fees; although the adverse party does not appear, to argue the cause on his part, but suffers the decree to be taken against him by default.
    The solicitor is entitled to his fee if he actually attends when the cause is reached and heard.
    Charges for serving copy of decree, and for proof of service, are not taxable, unless it is a decree that the party is required to serve.
    Engrossing the enrolment of decree is properly chargeable"; and five folios, in addition to the decree itself, are allowed for the enrolment.
    Where an amendment of a decree becomes necessary in consequence of an error of the solicitor of the successful party in drawing it up, the costs of such amendment are not taxable against the adverse party.
    The statute allows the court of chancery to enforce its decrees by execution. And to entitle a party in whose favor a decree has been made to an execution thereon, it is not necessary that the decree itself should contain an award of execution. The successful party is entitled to an execution as a matter of right, unless the decree itself prohibits the issuing of an execution thereon.
    This was an application, by the complainant, for a retaxation of the defendant’s costs, upon a decree for the dismissal of the complainant’s bill. The principal items objected to were, the costs upon a motion made by the defendant, to dissolve an injunction which had been granted in the cause; and nothing was said in the order in relation to the costs of the application.
    
      O. L. Barbour, for the complainant.
    
      W. L. F. Warren, for the defendant
   The Chancellor.

The necessary costs of the defendant upon his successful motion to dissolve the injunction were properly taxable, as costs in the cause; although nothing was said in reference to costs, upon the decision of that application. The rule as to the taxation of the costs of interlocutory proceeding's, as costs in the cause, is stated by the court in the case of Stafford v. Bryan, (2 Paige’s Rep. 52.) It is not usual to give costs to the defendant at the dissolution of an injunction, upon bill and answer, where the bill upon its face was sufficient to entitle the complainant to the injunction. For although the answer fully denies all the equity of the bill, it may, and frequently does, appear from the subsequent proofs that the charges in the bill were true, and that the answer which denied all the equity of the bill was false. But where the defendant succeeds in his defence, he is entitled to his costs of a successful application to dissolve the injunction, to be taxed as costs in the cause, if he obtains a general decree for costs. Nor does the provision of the 199th rule of this court apply to such a case; as it only provides for the amount of costs where the court directs the motion or petition to be granted or denied with costs. But wherever the costs of a special motion are allowed as a part of the general costs in the cause, the several items of such costs are to be taxed as a part of the general bill, unless the court directs the contrary.

The engrossing a copy of the affidavits to keep was not necessary, and should not have been taxed. (See Root’s case, 8 Paige, 629.) The drafts of the affidavits were all that were necessary for the defendant’s solicitor to keep. Nor was the defendant entitled to charge a separate solicitor’s and counsel fee upon the unsuccessful attempt of the complainant’s solicitor to suspend the hearing of the motion, to dissolve the injunction, until a future time. The resisting of such attempt was a part of the duties of the counsel upon the motion which he was employed to make. The charges for filing the draft of the order, and one of the charges for entering it in the minutes, and for the copy of the order and engrossing and service upon the complainant’s solicitor, were also improperly allowed upon the taxation.

Where the cause is brought to hearing upon pleadings and proofs, the counsel who actually attend upon such hearing are entitled to their fees; although the adverse party does not appear, to argue the cause on his part, but suffers the decree to be taken against him by default. And the solicitor is also entitled to his fee, where he actually attends when the cause is reached and heard. In this case the solicitor has been allowed for his attendance, and fees are also charged for two other persons as counsel. But from the affidavit, I do not understand that two counsel besides the solicitor actually attended upon the argument. The fee to one of the counsel should therefore have been disallowed. Serving a copy of the decree, with notice, and proof ■ of such service, were not taxable; as no such service of the decree was necessary. The engrossing of the enrolment was properly charged; and five folios, in addition to the decree itself, is allowed for the enrolment.

The charge for the disbursements on the proposed amendment of the decree ought not to have been taxed. If an amendment was necessary, it should not be at the expense of the complainant; as the error, if any, was attributable to the defendant’s solicitor who drew up the decree. But the solicitor of the defendant was wrong in supposing that any amendment of the decree was necessary, to entitle him to issue an execution to enforce the payment of the costs. The statute allows the court to enforce the performance of its decrees by execution. And to entitle a party, in whose favor a decree has been made, to an execution thereon, it is not necessary that the decree itself shall contain a provision to that effect. The execution to enforce the performance of a decree is a matter of right, under the statute; and the party in whose favor the decree is made is entitled, as of course, to an execution thereon, unless there is something in the decree itself prohibiting the issuing of an execution for a limited period, or until the further order of the court.

The illegal charges • embraced in the notice for retaxation, and which should be disallowed, amount to $16,44; which sum must be deducted from the bill as taxed. And as the complainant has only succeeded as to a part of the items as to which he asked a retaxation, neither party is to have costs as against the other upon this application.  