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claims in the one and the superior title in the other, of both of which he fully apprised the executor (and also the sole devisee and legatee) he had, and both of which he has fully established, as he fully apprised them he would.

He is therefore entitled as a legal right to costs under section 317. (See 4 Sand., 719; 14 How., 486; 16 How., 286.)

III. The second ground stated in Mr. Justice CAMPBELL'S order, that "no certificate of the referee as to the nature of the case, &c. has been presented," was erroneous.

There is no provision of law requiring a certificate except the last paragraph of section 41, but that applies only to such cases as are mentioned in that and the three preceding sections. Of course it is inapplicable to these cases, for the reasons already stated in Points I and II.

IV. The justice erred in deciding that he "had not the power to grant these motions."

This decision is founded upon the erroneous idea that defendant was not entitled to any costs under section 317.

He holds that section 41 applies to these cases, and that under it we are not entitled to any costs. This was erroneous, as we think we have already shown in Points I and II.

We have shown that section 17, m. p. 615, (2 R. S., 1st, 2d and 3d editions,) has been abrogated and wholly omitted in the 4th and 5th editions, and that Code, section 317, down to the first period of that section, was a substitute for section 17; and section 317, Code, gives costs as a legal right in the class of cases mentioned in section 17, where the executor was the plaintiff.

This proves that two distinct classes of cases were and are provided for, viz: 1st. Where the executor was the prosecutor, as in section 17, (2 R. S., m. p., 615;) and 2d. Where the executor is the defendant, as in section 41, (2 R. S., m. p., 90.)

We deny that section 41 of the Revised Statutes goes to the broad extent claimed by the justice in his opinion.

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If it were so, representatives could by unnecessary prosecutions vex and harass a whole community with impunity, and thus compel individuals to buy their peace. Are estates or their representatives privileged to that extent?

The justice refers, in his opinion, to the case of Belding agt. Knowlton, (3 Sand. S. C., 758;) Benedict agt. Caffe, (3 Duer, 672;) and Fort agt. Gooding, (9 Barb., 388–394, per WILLARD, J.) But they do not support the views of his honor, for the reasons already stated.

V. His honor claims that "it does not change and ought not to change the liability of a representative to costs that the claim was interposed as a defence in the form of a counter-claim," &c.

With all possible respect for his honor, we think it wholly unnecessary to set out on a circumpolar exploration to get around the plain letter of the law. We have shown that the law provides for distinct classes of cases.

1st. Where the executor was plaintiff or prosecutor, as in section 17, (2 R. S., m. p. 615,) now incorporated in section 317, Code, which gives costs against executors as a legal right, &c., and dispensing with the necessity of a special application, &c.

2d. Where the action was founded upon a demand against the estate, section 41 (2 R. S., m. p. 90) must have been complied with, &c.

Were these actions founded upon defendant's counterclaims in the first and superior title in the second? They were founded upon a claim to recover the $500 note, and the claim of the property by the executor.

Actions are founded upon the subject matter stated in the complaint. But it would be comical to say that an action is founded upon a defence; that a suit is commenced, &c. upon what may appear in defendant's answer, &c.

The question of costs depends upon no qualification except as in section 41, which does not protect him from being sued, but from being unnecessarily sued, and this his

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honor calls a remedial act, and so it is. It remedies unnecessary prosecutions against estates. So was section 17 a remedial act; it remedied unnecessary prosecutions by estates against individuals. Section 17 is now abrogated and costs are provided for in section 317, Code; and that, too, is a remedial act.

There is no special privilege on either side. The whole scheme of our laws is founded upon a remedial theory; they protect individuals as well as estates.

But even if the justice were right in his views as to the action founded on the note, he was clearly wrong as to the action in trover for the property, for there the defendant had no claim to present. He had the possession of the property under a claim of title, and he needed nothing more. How could the justice apply section 41 to that case?

In short, the principles we contend for have been repeatedly pronounced at general term in like cases. (See 4 Sand. S. C., OAKLEY, J.; 14 How. Pr. R., 486, BALCOM, J.; 16 id., 286, WELLES, J.)

And where a decision of this court is pronounced at a general term thereof, &c., it is authoritative and binding as such upon the judges of this court, and all subordinate tribunals, and in all places, until overruled, &c., or reversed by the court of appeals. (16 How. Pr. R., 289; 9 Barb. R., 489.)

His honor seems to suppose that "representatives might connive," &c.

This, we think, is borrowing trouble; the law makes them liable, in various ways, for such conduct.

His honor also seems to suppose that "courts would lose all control over them."

But courts have entire control over them, and cannot very well lose it. Courts have ample power by law to order, restrain, attach or remove them.

"dif

VI. The views of his honor as to whether these are ficult and extraordinary" cases, &c., we think are erro

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neous. The justice says, "what would be difficult to one counsel might perhaps be quite a common affair to another, so that the skill or capacity of the counsel is not to control."

If this be a correct view, then the latter portion of section 309 must be, for all practical purposes, a dead letter to the profession; for what would be "difficult" to the average and even to those who are regarded as superior in the profession, "might be quite a common affair" to those who are pre-eminent. And who shall judge what is "difficult" ?-where are the landmarks?

It is easy to perceive that under that view, section 309 would be of no practical importance or benefit to the profession. The true inquiry is, was the labor, skill or professional requirement sufficiently provided for by the fee bill? If not, then by section 309, the court should make a suitable indemnity. (9 Barb., 395; 5 How. Pr. R., 121, 152.)

It was conceded on the part of the plaintiff that these causes were "extraordinary," but it was denied that they were "difficult," and his honor the justice says, "the difficulty must be inherent."

We claim that they were both "difficult and extraordinary," because of the amount in question; the extended range of inquiry into the large and varied business of the testator; and the large number of necessary witnesses subpoenaed and sworn; the unusual number of matters litigated, as shown by the report and otherwise; the double claims against the defendant, i. e. the claim to recover the value of the property in one suit as a counter-claim to defendant's counter-claim, and the value of the same property in the other suit; amendment of plaintiff's pleadings; questions of law as to the competency of evidence; the large amount of time, labor and expense incurred by defendant to vindicate his rights and to defend himself against these unreasonable and vexatious prosecutions instigated by the sole devisee and legatee of the estate, and doubly prose

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cuted against him by the plaintiff on his part, and the sole devisee, &c. on her part, by separate counsel.

In the language of Justice WILLARD, in Fort agt. Gooding, (9 Barb., 395,) "the regular fee bill affords no adequate compensation for professional services in such cases."

And the effect of prosecuting by separate counsel was to increase the defendant's labor two-fold, without any increase of compensation (unless the court will allow it under section 309, Code.) The plaintiff on his part had his duty to employ counsel, and the sole devisee and legatee had perhaps a strict right to employ counsel on her part, (an unusual and extraordinary affair, to say the least of it;) but the defendant should not be prejudiced by the extra labor and difficulty thus cast upon him.

If the sole devisee and legatee of the whole estate insists on her extreme rights to multiply the "difficult and extraordinary" feature of these cases, the plaintiff should not and the sole devisee, &c. cannot complain if she is required thus, in part, to indemnify the defendant for extra labor, costs and difficulties thus cast upon the defendant. See the emphatic language of WILLARD, J., 9 Barb., 395; and see BARCULO, J., in 5th How. Pr. R., 121 and 153.

The order appealed from should be vacated, with costs.

P. GRIDLEY and A. H. AYRES, for respondent.

By the court, JAMES, Justice. A motion was made in each of the above entitled causes for the ordinary costs against the plaintiff, and for an extra allowance under section 309 of the Code. Both motions were denied at the special term, from which decision the defendant appeals.

The first action was brought upon a note for $500 found among the executor's papers, made by the defendant. The answer, among other defences, set up a counter-claim against the testator.

The second action was brought to recover property in