Kendall v. Kendall — 6 Sarat. Ch. Sent. 29

Majority

p. 29

Susannah Kendall v. Thomas Kendall.

J. L. White, for appellant ;

P. Wauner, for respondent.

Decided that in a suit for

p. 30

divorce on the ground of adultery if the wife obtains a decree for costs against her husband, she is not entitled to collect the whole amount of her taxable costs, if a sum has already been advanced to her, or her solicitor, or next friend, on acconnt of such costs, ’ . . I ’ pendente hie. Nor is the allowance to her for costs and expenses of the suit confined to the mere taxable costs of the srtit as be* tween party and party. But in litigated suits, where the wife is necessarily subjected to extra expenses and counsel fees, in addition to the taxable costs as between party and party, the Whole amount which has been advaneed to her pendente lite for costs and expenses should not be deducted from the ordinary bill of costs as between party and party to which she is entitled under the decree.

That in such cases the husband should be allowed only for the balance of his advances, after deducting therefrom the necessary expenditures of the wife for counsel fees &c., which are not included in the ordinary taxed bill. And the decree, in such cases, should direct the taxing officer, upon the taxation of the costs of the wife under the decree, to allow to the husband the amount of his advances pendente lite, in dimunition of the taxable costs, after deducting from such advances such reasonable expenses and counsel fees as had been paid by the wife and which are not included in the ordinary taxed bill. Oí, the court itself should determine whether any, and if any, what allowance should be made for extra expenses and counsel fees beyond the taxable costs, and direct the residue of the advances which had been made by the husband to be deducted by the taxing officer upon the taxation of the costs under the decree.

That, in ordinary cases, where the husband is the defendant in a suit for a divorce, and admits the allegations in the bill, either by answer or by allowing the bill to be taken as confessed against him, the ordinary taxable costs ^re sufficient to cover all the ne= cessary expenses of the suit, except the extra expense which may be necessary to procure the attendance of witnesses before the master, in addition to the allowance made by law to the witnesses. And that is all that should be allowed in such cases, unless it is made to appear that something special had occurred in the cause to render the employment of counsel other than the solicitor in the cause necessary.

p. 31

Order appealed from, modified without costs to either party, as against the other.