Sanborn v. Sanborn

This was a writ of entry to foreclose a mortgage. At tbe last February term the action was continued, upon condition that tbe plaintiff should pay tbe costs of tbe term, and tax none. Tbe costs were not paid. At tbe present term, it appearing that since tbe last term tbe plaintiff’s title to tbe demanded premises bad failed, by reason of tbe payment of tbe mortgage debt in satisfaction of an execution issuing upon a judgment therefor, in Grafton county, tbe court directed judgment for tbe defendant for tbe costs of tbe February term, according to the order of tbe court at that term, and for the costs.of tbe present term since tbe plaintiff’s title wholly failed; to which direction tbe plaintiff excepted; and judgment having been rendered agreeably to said direction, tbe plaintiff filed this bill of exceptions, which was allowed by tbe court.

Tbe court are of opinion that questions relating to tbe allowance of costs are not open to revision at tbe law terms, unless tbe question is referred to tbe law term by the presiding justice at tbe trial term. But, if the question were open, we think tbe decision of tbe court below was correct. "Where the title of tbe plaintiff fails, and be does not discontinue bis process at once, be is clearly liable for tbe subsequent costs. Being liable to an execution for such costs, we entertain no doubt that it was proper to add tbe costs ordered as tbe terms of a continuance at tbe previous term. They are costs to which be is by law entitled, and for which such process may be issued as tbe court may deem suitable, tbe court having tbe general power to mould their process as tbe equities of tbe cases before them may require.

The ordinary process at common law for neglecting to comply with any order of court, is an attachment for contempt. We are unable to see any good reason why an execution may not be issued upon an order of court for the payment of money, as well as upon a more formal judgment. Tbe remedy by writ of execution is preferable for both parties, in point of expense and trouble.