The act to reduce the expense of foreclosing mortgages in the court of chancery, as amended in 1841, has fixed the allowance for solicitor’s fees for the whole proceedings in a foreclosure suit, where there is no defence. But the legislature never could have intended to give the whole, allowance, there prescribed, for the mere institution of a foreclosure suit which should be settled without proceeding to a decree. The only effect, therefore, which can be given to that act, in suits which are settled, or discontinued, upon payment of costs, before the same have proceeded so far as to ascertain whether a defence will be made by any of the defendants therein, is to limit the amount of solicitor’s fees ; so that it shall not exceed the gross sum, fixed by statute, for the whole proceedings when there is no defence. And as the acts of 1840 and 1841 *328have made no provision for compensation in such cases, the solicitor is entitled to have his costs taxed according to the general fee bill in other suits; subject to this limitation as to the gross amount.
It is the duty of the officer, upon taxation, to strike out all charges for services which were not necessary to be performed. (2 R. S. 653, § 5.) Where the solicitor for the complainant in a foreclosure suit, therefore, brings persons before the court, as defendants, whom he had no reason .to suppose were necessary or proper parties, the taxing officer may inquire into the facts; and should disallow all charges for extra costs, or for disbursements, on account of such unnecessary parties. Nor is the taxing officer precluded from doing so by the formal charge", in the complainant’s bill, that such defendants have, or claim, some interest in' the mortgaged premises, as subsequent purchasers or incumbrancers.
It is sworn, in this case, that the complainant knew, previous to the commencement of his suit, that the mortgagor had conveyed all his interest in the mortgaged premises; although the purchaser had not caused his deed to be recorded. It is not stated, however, that the complainant was apprised of the real time when that deed was given; nor that the mortgagor’s wife had joined in it, and acknowledged it in such a manner as to bar her contingent right of dower. It was, therefore, a proper precaution, on the part of the complainant’s solicitor, to make the judgment creditors and the wife of the mortgagor parties to the suit. There was no necessity, however, nor any apparent excuse, for mailing the five children of Wales, the subsequent mortgagee, parties. The executor fully represented the rights of the decedent as mortgagee, and the heirs at law should not have been made, defendants. The extra costs of making them parties must, therefore, be disallowed. Deducting those and other objectionable charges, from the bill of items as submitted to the vice chancellor, will leave $44,31 as the taxable costs to which the complainant’s solicitor is entitled.
Neither party, is to have costs as against the other, upon this application for a re-taxation.