The court is of opinion that under the peculiar circumstances of this case the taxation of the costs by the clerk was correct, and must be affirmed. If the defendants had not offered, before the case was referred to the auditors, to pay their fees, the plaintiff would have been obliged to pay them, and if he had prevailed in the action might have taxed them in his bill of costs. Gen. Sts. c. 121, § 50. Upon the facts found in the report, the court cannot know that the offer of the defendants to pay their fees was not one of the reasons which induced the judge to refer the case to auditors. The defendants did not pay the auditors’ fees under any requirement of statute, or order of court, but pursuant to a promise voluntarily made by themselves. Failing proof of any agreement on the part of the plaintiff that he would repay these fees, or that they might be taxed against him if the defendants should ultimately prevail, the defendants are not entitled to have them so taxed*
Taxation affirmed, with costs of this appeal for the plaintiff.
By St. 1867, c. 67, section 50 of c. 121 of the Gen. Sts. is amended, so that the compensation awarded by the court to auditors may be paid by either party to the suit, and taxed in his bill of costs if he prevails.