Remarks. This allowance is taken from the acts of 1789 and 1801. The act of 1813 made a distinction in those cases between an attendance when a matter was argued, or the costs objected to, and when not, and increased the costs to 1 dollar in the former case. I do not perceive why any distinction should be made in these cases for mere attendance, and I have accordingly rejected it. There may be more time consumed, but it is not worth notice.

18. Attending the register with a draft of every decree, decretal or other order, to have the same settled and entered, 50 cents.

Remarks.

This allowance is taken from the act of 1813, and it appears to be reasonable.

19. Copy of a bill of costs to be delivered to the opposite party before taxation, or to file after taxation, if before a decree, 50 cents, and if after a decree, 1 dollar.

Remarks.

The allowance in this case is much diminished from that in the act of 1813, by totally omitting the following charge, "Drawing costs for taxation, for every ninety words 20 cents." It is fair

and reasonable as it now stands.

20. And the solicitor is to be allowed in the taxation of costs for all · disbursements actually and necessarily paid or incurred in the progress of the cause, and not herein already provided for.

Remarks.-This provision is in the act of 1813, and it is just.

This bill of solicitor's fees leaves untouched a number of charges allowed by the act of 1813, in the table of the solicitor's fees, relating to the court of errors and appeals. Those charges were not within the scope of the resolution of the honorable the Assembly, and I have therefore not interfered with them.

Fees of the sergeant of the court.

1. Each sergeant for attending court for every final decree entered at the place of his attendance, and whether entered in term or vacation, 50 cents, to be paid to the register or assistant register

when the decree is entered; and for such other services as be shall perform by order of the court, such compensation as the Chancellor shall from time to time allow to be paid by the party, or in the manner the court may direct.

Remarks. The only variation between this provision and the one in the act of 1813, is that this gives 50 cents for every final decree, and that only for every cause heard. There may not be ten causes heard in a whole term, which usually lasts in the city of New York, from four to six weeks, and there may be fifty or a hundred decrees entered I have known one cause last a fortnight, and the faithful sergeant who attended five hours a day steadily the whole time, earned only four shillings. Such an officer is indispensable to the comfort of the court and bar, in order to preserve order, to attend to the door and fire, and to do errands, and no decent man can afford his whole time for weeks together in the cities, and who has a family to support, without a reasonable allowance; the act of 1813, offered him no adequate allowance.

The following decision was given by his honor the Chancellor on the 5th of June, 1818, with a view of correcting a loose kind of practice which had crept into his court, touching the rights of infants on the foreclosure of mortgages.

Bill to foreclose a mortgage executed by Isaac Dennis, deceased. The defendants (except one) are the heirs at law of the mortgagor, and two of them are represented as infants, and the bill was duly taken pro confesso against all the defendants except the two infants, who have appeared and answered by their guardian, the clerk of the court, who was appointed their guardian for this purpose by an order of the court. A reference was made to a master, to compute and report the amount due on the bond and mortgage mentioned in the bill. The cause was then regularly set down for hearing upon the report, and due notice thereof as respects the infants served upon their guardian.

G. W. Strong, Solicitor for the plaintiff, moved for a confirmation of the report, and a decree for the sale of the mortgaged premises.

The Chancellor. A decree cannot be safely obtained against an infant upon the mere fact of taking the bill pro confesso, or upon an answer in form, by the guardian ad litem. The answer in such cases generally is, that the infant knows nothing of the matter, and therefore neither admits nor denies the charges, but leaves the complainant to prove them as he shall be advised, and throws himself on the protection of the court. A decree upon such an answer, would not bind the infant, and he could open it. or set it aside when he comes of age. No laches can be imputed to an infant, nor can the guardian ad litem, by any consent, bind his rights. No valid decree can be awarded against him merely by default, or upon such a consent. The plaintiff, in every such case, ought to prove his demand either in court or

before a master, and the infant is usually entitled to a day to show cause when he comes of age.

The English practice on bills of foreclosure against an infant, is stated (2 Maddock's Prac, 352.) to be "to decree a foreclosure, with a day to show cause when he becomes adult: but the court in case the mortgagee consents to a sale, will direct an inquiry whether it will be for the infants' benefit; and when a day is given to show cause, the infant when of age is not allowed to unravel the account, nor is he entitled to redeem the mortgage by paying what is reported due, but is only entitled to show an error in the decree.

In Goodin v. Ashton, (18 Ves. 83.) on a decree of foreclosure against an infant, a day was given him to show cause, as being the usual course; but it was then suggested, that a decree for a sale would be more advantageous to the infant, as the estate might be mortgaged for less than its value, and that this was the practice in Ireland, and it was the course recommended in Booth v. Rich, (1 Vern. 295.) and in Monday v. Monday, (1 Ves. & Bea. 223.) this course was at last adopted by Lord Eldon.

It appears to me, therefore, that the safe and proper course on bills for the sale of mortgaged estates, according to the usual course, and when the defendants, or some of them are infants, is to direct an inquiry whether a sale would be for the infant's benefit, and also to require the plaintiff on the reference to prove his demand, and that the master report not only the amount of the principal and interest due the complainant, but also the proof, together with his opinion in respect to the sale, and if the proot of the debt, and of the expediency of the sale should be made out to the satisfaction of the Chancellor, the decree must in such particular cases be absolute, as it would destroy the safety and effect of such sales to make the decree nisi until the infant come of age, and it was said by the court in Booth v. Ricà, that a sale in such case would bind the infants.

I shall accordingly direct, that it be referred to the master to take proof of the case as stated in the complainant's bill, and to inquire also, whether under the circumstances of the case, in reference to the amount of the debt, and the situation, nature and value of the mort. gaged premises, a sale of the whole or a part only, and what part of the mortgaged premises would be for the benefit of the infant.

Isaac L. Kip, Assistant Register.

June 17, 1818.

Ordered, That so much of the rule of the 1st of November, 1816, as authorizes the taxing master to make allowances beyond the specified provisions in the fee bill, to masters for extra services, without any previous directions in the case by the Chancellor, be repealed.

July 2, 1818.

Ordered, In addition to the 33d printed rule, it is ordered, that where the complainant shall set down the cause for hearing at the first or any term after the same is in readiness to be set down, but shall not bring the same to a hearing at such term, nor show any good cause to the court at the time for not doing so, it shall be considered a default in the complainant, so as to authorize the defendant on making and filing an affidavit thereof, to enter an order for leave to set down the cause in the same manner, or to the like effect, as though the complainant had omitted to set down the cause at the first term after it was in readiness.

Ordered, That whenever a party shall set down a cause for hearing, and give notice thereof, and shall neglect to bring the same to a hearing at the term in which it shall be so set down, or show good cause to the contrary to the satisfaction of the court, the opposite party shall be entitled to costs for attendance on the court upop such notice to be taxed.