IMAGE EVALUATION TEST TARGET (MT-3) 1.0 !riia iiiiiM 2.2 1^ m I.I IAS illO .8 1.25 1.4 1 6 1 4 6" ► p> <^ /2 "l o ^1 e: V] ^ % > ^. -is '^ ,^ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. MS80 (716) 873-4S03 ^^ w<^ A ^ <* "% v^. «? (9 CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreprodnctions / institut canadien de microreproductions historiques 1981 TecKnical and Bibliographic Notes/Notes techniques at bibliographiques The Institute has attempted to obtain the best original copy available for filming. Features of this copy which may be bibliographically unique, which may alter any of the images in the reproduction, or which may significantly change the usual method of filming, are checked below. □ D D □ □ Coloured covers/ Couverture de couleur Covers damaged/ Couverture endommagee Covers restored and/or laminated/ Couverture restaur^e et/ou pellicul^e Cover title missing/ Le titre de couverture manque Coloured map?/ Cartes g^ographiques en couleur Coloured ink (i.e. other than blue or black)/ Encre de couleur (i.e. autre que bleue ou noire) Coloured plates and/or illustrations/ Planches et/ou illustrations en couleur Bound with other matr'ial/ Reli^ avec d'autres documents L'Institut a microfilm^ le meilleur exemplaire qu'il lui a 6t§ possible de se procurer. Les details de cet exemplaire qui sont peut-dtre uniques du point de vue bibliographique, qui peuvent modifier une image reproduite, ou qui peuvent exiger une modification dans la mdthode normale de filmaye sont indiquds ci-dessous. r~~y Coloured pages/ Parses de couleur ~~|/Pages damaged/ I Pages endommagdes □ Pages restored and/or laminated/ Pages restaurdes et/ou pellicul^es j y Pages discoloured, stained or foxed/ LiZl Pages d6color6es, tachetdes ou piquies I I Pages detached/ Pages d^tachees Showthroi'gh/ Transparence Quality of prir Qualite in^gale de I'impression Includes supplementary materii Comprend du materiel supplementair I > Showthroi'gh/ I I Quality of print varies/ r I Includes supplementary material/ D n Tight binding may cause shadow;} or distortion along interior margin/ La reliure serree peut causer de lombre ou de la distortion le long de la marge int^rieure Blaiik leaves added during restoration may appfjar within the text. Whenever possible, these have been omitted from filming/ II se pe'Jt que ':ertaines pages blanches ajout^es lors dune restauration apparaissent dans le texte, mais, lorsque cela dtai; possible, ces pages n'ont pas m filmdes. n Only edition available/ Seule ddition disponible Pages wholly ot partially obscured by errata slips, tissues, etc., have been refilmed to ensure the best possible image/ Les pages totalement ou partiellement obscurcies par un feuillet d errata, une pelure, etc., ont 6t6 filmdes d nouveau de faqon d obtenir la meilleure image possible. D Additional coniments:/ Commentaires suppl^mentaires; This item is filmed at the reduction ratio checked below/ Ce document est filmd au taux de reduction indiqu6 ci-dessous. 10X 11X 18X ZLX 26X 30X ./ 12X 16X MX 24K 28X 32X .... The copy filmed here hos been reproduced thanks to the generoi..ity of: National Library of Canada L'exemplaire fiim^ fut reproduit gr§ce d la gdn^rosit^ de: Bibliothdque nationale du Canada The images appearing here are the best quality possible considering the condition and legibility of the original copy and in keeping with the filming contract specifications. Les images suivantes ont ^t6 reproduites avec le plus grand soin, compte tenu de la condition et ae la neitet^ de l'exemplaire film6, et en conformity avec les conditions du contrat de filmage. Original copies in printed paper covers are filmed oeginning with the front cover and ending on the last page with a printed or illustrated impres- sion, or the back cover when appropriate. Al! other original copies are filmed beginning on the first page with a printed or illustrated impres- sion, and ending on the last page with a printed or illustrated impression. Les exemplaires originaux dont la couverture en papier est imprim^e sont filmds en commenpant par le premier plat et en terminant soit par la dernidre page qui comporte une empreinte d'impression ou d'illustration, soit par le second plat, selon le cas. Tous les autres exemplaires originaux sont film^s en commengant par la premiere page qui comporte une empreinte d'impression ou d'illustration et nn terminant par la dernidre page qui compoite une telle empreinte. The last recorded frame on each microfiche shall contain the symbol — ^ (meaning "CON- TINUED "), or the symbol V (meaning "END"), whichever applies. Un des symboles suivants apparaitra sur la dernii^re image de cheque microfiche, selon le cas: le symbole — ♦- sigr.ifie "A SUIVRE", le symbole V signifie "FIN". Maps, plates, charts, etc., may be filmed at different reduction ratios. Thof 9 too large to be entirely included in one exposure are filmed beginning in the upp^r left hand corner, left to right and top to bottom, as many frames as requirod. The following diagrams illustrate the method: Les cartes, planches, tableaux etc., peuvent Stre filmds d des taux de reduction diff6rents. P.orsque le docun?ent est trop grand pour dtre reproduit en un seul cliche, il est film6 d partir de Tangle supdrieur gauche, de gauche t droite, et de haut en bas, en prenant le nombre d'iinages n^cessaire. Les diagrammes suivants illustrent la mdthode. 1 2 3 1 2 3 4 5 6 ..V .■ '!*■>'■-■ «. ■*'•' l^''''"'^.. X- -X I AIIMOIIII (E. I).) ON TITLES. A Treatise on the Inveatif^ation of Titles to Estates in ]'\!(; Siinpli', with a Prcccdiwit for an Abstract, hein^; tlic Third edition of iMr. Taylor's Work, 1HH8. llalf-calf, %r,m HAHRONON lULLS OF HALE AND ("IIATTEL MOHTCIACEK. Second edition. iMilan^'cd imd improved, lH-^^^. Cloth, S7.()0 ; Half ciilf, .^TAO. POYS ON COKONEHS. A Prnctical Tw.n«. , .,„ i„o onico and Dntics of Coroners. By W. V. A. (.Ind«e) Hoy. ^n.l Edition. Ifjilf calf, SW.OO. lUIIlKE'S (.Junius Jessel) EETTEItS TO A I, AW STUDENT, witli a set of Examina- tion Taiiers, t^'ivin^; the student an i.C.) MANUAL OF PROCEDURE in the Suprenni Court of Ciinada, a ninv edition in press, revised to date, 1HH8. CABSWEI.X. & CO., LAW PUBLISHEBS, Etc., 86 ft SB Adelaide Street East, Toronto. b/ ^.r/// 'X -3« ) \ Jg- K CLAKKI'] ON BILLS. A Treatise on tlie Law relating to Bills, Notoh, ('lioc. "A capital collection, illustrative of national character, and sure to be appnuiiated." "An excellent (!ompiinion for a leisure hour." ■X m i CARSWEI.I. Sc CO., I. AW PUBLISHERS. Etc., 26 ft as Adelnido Street East. Toronto. — — • ' ■ • 1 — ■ iV HANNAY'R NEW BRUNSWICK RETORTS. 2 vole., (being N.B.R. vols. 12 and 13.) Half-calf, each 8750, HARDY'S LEGAL DIRECTORY. 1883. Cloth, 50c. HODGINS' ELECTION REPORTS of the Decisions for the Trial of Election Petitions in (Ontario, relating to Elections to the Legislative Assembly, 1871 to 1870, and to the House of Commons of Canada, 1874 to 1878. By Thos. Hodgins, Q.C. Half -calf . $6. HODGINS (W. E., M.A.) ON JOINT STOCK COMPANIES, being Synopsis of the Provisions of the Companies Act, Revised Statutes of Canada, chapter 119, and 50-51 Victoria, chap. 20, with Forms, etc. 1888. Cloth, »3.00. HODGINS' (THOS,, Q.C.) VOTERS' LIST for Legislative arti Municipal Elections in Ontario, with Forms, etc, 1886. Cloth, $3.00. HOWELL ON NATURALIZATION AND NATIONALITY IN CANADA; Expatria- tion and Repatriation of British subjects ^ Aliens, their disabilities and privileges in Canada, etc. By Alfred Howell, Cloth, »1.50; Half-calf, $2. HOWELL'S SURROGATE COURT PRACTICE. A Treatise on the Law and Practice as to Probate, Administration and Guardianship, in the Surrogate Coui'ts, in common form and contentious business, including all the Statutes, Rules, Orders and Forms. By Alfred Howell. Half-calf , »6. JAMES' NOVA SCOTIA REPORTS. Half-calf, »6. JONES' CONSTABLE'S GUIDE. The County Constable's Manuai or Handy-Book, with subjects arranged alphabetically. By J. T. Jones, High Constable County York. Cloth, 50c.; Leather, 75o. JON'^S ON PRESCRIPTION AND EASEMENTS. A practical Treatise on Real Property Limitation, with a complete Compendium of the Law of Easements. By H. C. Jones, M.A. Half-calf, »5. JONES ON THE T0RRRN8 SYSTEM of Land Transfer. A Practical Treatise on "The Land Titles Act of 1)^85, Ontario," and "The Real Property Act of 1885," Manitoba. Embracing all the English, Australian and Canadian Cases. By H. C. Jones, M.A. Cloth, »4.50 ; Half-calf, iili. ^ABSWBXiI^ ft CO., IiAW PUBIiISHESS, Etc., ao ft 98 Adalald* Stroet BMt, Torontc. -W 12 and 13.) 1 Petitions and to the ilf-calf. »G. .^-Sis^ ibIb of the , and 50-51 lections in Expatria- ivilcfjes in id Practice in common nd Forms. ndy-Book, tmty York. TO H. M. HOWELL, Esq., Q.C, NOW OF THE MANITOBA BAR. THIS WORK IS (Without His IWmmion) RESPECTFULLY INSCRliiE]) BV HIS FORMER PUPIL. te on Real lents. By reatise on of 1H85," Bv H. C. CANADA NATIONAL LIBRARY BIBLIOTHEQUE NATIONALE / I • / A I A MANUAL ON THE vTaxation of Costs IN THB HIGH COURT OF JUSTICE; WITH CHAPTERS ON COSTS IN ALIMONY ACTIONS, AND COSTS IN INTERPLEADER PROCEEDINGS. BY CHARLES HOWARD WIDDIFIELD, (Of Osfjoode Hall, barrixter-at.Law.) ri TORONTO : CARSWELL & CO., LAW PUBLISHERS. 1891. AH 2. Kutered according to Act of tl.e Parliament of Ca.iada, in the year one thousand ciplit lunulred and ninotyone, .>y Cars^ki.l * Co,, in the office of thf Minister of Agriculture. ^"^ PlUN'l'KD By Thos. Moork a- Co., Law Printebs Sii & 24 Adelaihk St, Kast TORONTO. I K i- i! SI- .'I. j PREFACE. T3EF0RE I thought of compiling this small volume I had made, for my own convenience, a memorandum of cases relating to the taxation of costs. This memor- andum I found of so much assistance to me in my practice when preparing and taxing bills of costs that the idea occurred to me that a work containing a digest of these cases, so arranged as to be available for immediate reference, would be found of considerable service .to ethers. No attempt has been made to treat of the princi^jles of taxation, and, except in a few instances, I have not ventured my own opinion, but contented myself with digesting the decisions as [ found them where they appeared to be applicable to our practice. In citing many of tiie English decisions I have only referred to digests for authority, not having access to all the English reports in which the cases are found. I can only ask the indulgence of a generous profession for the doubtless many imperfections in my first attempt at book-making. ^ PicTON, 15th January, 1891, C. H. WIDDIFIELD, I'tl > 7 TABLE OF CONTENTS. Deilication iii Preface v Table of Abbreviations x Table of Cases Cited xiii Errata xx Abandoned Motion 1 Abortive Proceedings 2 Adjournment into Court 3 Admissions 4 Advertisement of Sale 5 .* "^davits 5 Agency Fees 9 Amendments 9 Appeal, Proceedings in 11 Arbi«:rators and Arbitrations 13 Attendances 14 Auctioneer 17 Briefs 18 Cheques in Court 20 Commission in lieu of Costs 21 Commission to take Evidence 24 Copies 26 Costs before Writ issued 28 Costs in the Cause 29 Costs of the Day 31 Counsel Fees 84 Defendants Severing 37 Dem urrer 40 Discontinuance 41 Documents 41 UNI VIU TABLK OF CONTENTS. Park. Enlargement of Motions 42 Examinations tie bene esse 43 Examination of Parties 44 Executions 45 Experts 46 Fiats 47 Incumbrancers 48 Injunction Motions 48 Instructions ^^ Irregularities ^^ JudgUiCiits 52 Jury Fee 53 Letters' 5^ Maps and Plans 54 Motions 55 New Trial 58 Notices 58 Orders 59 Perusals ^j^ Pleadings 61 Postponing Ti ial 63 Record 64 Relerences 64 Refreshers 65 Retaining Fee ^6 Revision of Taxation 68 Sale 69 Services of Paper^^. and Process 70 Simili ter 72 Solicitor and Client Costs 72 Solicitor Suing or Defending in Person 79 Special -fury 81 Stop Order 82 Subpoena ... 83 Taxation of Costs 88 TABLE OF nONTENTS. 84 Telegrams Travelling Expenses gg Trial ...'...]^....^^.. Unnecessary or Vexatious Costs Vesting Order Vouchers 86 86 91 01 Witnesses and Witness Fees c)j Witness Fees must bo paid bel'ore taxation 98 Witness subpaniaed but not s .vorn , 94 P'oreign witness gy Maintenance of witnesses Professior,'-,! witnesses k Materiality of witnesses Witnessta on different issues 98 )1 Attendance of witnesses j Writa of Summons. 103 105 06 106 Costs m Alimony Actions 1Q3 Costs in Interpleader Proceedings 117 Scale on which costs taxed ny Sheriff's costs 221 Costs of the execution creditor and claimant 127 Security for costs in interpleader lyo The Consolidated Rules Uelating to Costs. Appeals from taxation 133 General rules Taxation Sheriff's costs Security for costs Tariffs of Costs. Solicitor's costs igq Tariff of disbursements 172 Tariff of sheriff's fees _\ ^79 134 142 152 156 TABLE OP ABBREVIATIONS. App. P.. Arch. Pr. A. &E. B. &B. B. & C. Beav. Bing. B. N. C. Cababe. C. B. C. B., N. S. Ch. D. Cb. Rep. Chy. Ch. Chitt. Churchill. C. L. Times. C. L. Journal. C L. J., N. S. C. L. R. Con. Rule. C. & P. Dan. Chy. Pr. Dowl. D. P. 0. D. .V L. Ontario Appeal Reports. Chitty's Archbold's Practice, 14th ed. Adolphua & Ellis' Reports. Ball & Beatty's Reports. Baruewall & Cress^vell's Reports. Beaven's Reports. Bingham's Reports. Bingham's Reports, (New Cases). Cababe on Interpleader. Common Bench Reports. Common Bench Reports, (New Series). Law Reports, Chancery Division. Cli amber Reports. Chancery Chamber iieports. Chitty'ri Reports. Churchill on Sheriff. Canada Law Times. Canada Law Journal. Canada Law Journal, (New Series). Common Law Reports. Consolidated Rules of Practice. Carrington & Payne's Re])ort8. Daniel's Chancery Practice, (Hh edition. Dowling's Practice Cases. Dowling's Practice Cases. Dowling & Lown'^es' Reports. TABLE OF ABBREVIATIONS. XI D. &R. Eq. El. & Bl. Ex. D. Gr. Gale. Ha. Hare. H. & N. Ir. E. Ir. Eq. Jur. .Tur., N. S. K. & J. L. J., Ch. L. J., C. P. L. J., Exch. L. J.. N. S. Mac. & G. M. .t. G. Mad. Man. Man. L. R. Maibh. Mor. & Wurt. Moore. M. & R. M. & 8cott. M. & W. Out. R. 0. S. P. R. P. D. Price. Q. B. D. Bowling & Ryland's Reports. Equity Reports. Ellis & Blackburn's Reports. Law Reports, Exchequer Division. Grant's Chancery Raports. Gale's Exchequer Reports. Hare's Reports. Hare's Reports. Hurlstone & Norman's Reports. Irish Reports. Irish Equity. Jurist. Jurist, (New Series). Kay (fe Johnson's Reports. Law Journal, Chancery. Law Journal, Common Pleas. Law Journal, Exchequer. Upper Canada Law Journal (New Series). Macnaghten & Gordon's Reports. Manning & Granger's Reports. ]\raddock'8 Chancery Reports. Manitoba. Manitoba Law Reports. Marshall's Reports. Morgan & Wurtzburg's Law of Costs. Moore'f} Common Pleas Reports. Manning Si Ryland's Reports. Moore & Sco;t's Reports. Meeson & Welsby's Reports. Ontario Reports. Old Series, Upper Canada. Ontario Practice Reports. Law ]ieports, Probate Division. Price's Exchequer Penorts. Law Reports, Queen's Bench Division. Xll Rep. I. L. 0. Seott. Scott, N. R. Sm. & G. Taylor. Taylor on Ev. Taunt. U. C. C. P. U. C. Q. B. U. C. L. J. W. N. W. R. Whiteway. TABLE OF ABBREVIATIONS. Report of Mr. Winchester, Inspector of Legal Offices. Scott's Reports. Scott's New Reports. Small & Gifford's Reports. Taylor's Upper Canada King's Bench Reports. Taylor on Evidence, 8th edition. Taunton's Reports. Upper Canada Common Pleas Reports. Upper Canada Queen's Bench Reports. Upper Canada Law Journal. Weekly Notes. Weekly Reporter. Whiteway's Hints to Solicitors. I TABJ.E OF CASES CITED. A. A. B., a Solicitor, In re, 75. Adams v. Blankwell, 124. iT'^tna Insurance Co., Re, 48. Agnew V. Plunkett, !), 54. Aitken v. Dunbar, 2, 56. Alexander v. School Trustees of Gloucester, 5, 14, 15, 45, 51, 5.^, (53, 72, 84, 9(5, IOC. Allenby A Weir, Solicitors, In re, 75, 89. AUport V. Baldwin, 95. Ancient Order of Foresters, In re, and Castnar, LSI, 132. Andrews v. Barnes, 75. Anonymous 7. Ansett V. A;arshall, 100. Archer V. Swern, 3(5, 74. Arkell v. Geiger, 121. Armitage v. Armitage, 20, 22. Attorney-General v. Midland Ey Co., 40. Attorney-General v. Taylor, 30. Autothreptic Steam Boiler Co., In re, 13. B. Bahia, The, 100. Baines v. Wormsley, (52. Ball V. Compton Corset Co.. 97, 99. Barber, In re, HI. Barber v. Morton, 12, 51. Barrett v. Campbell, 39. Barker v. Dynes, 122, 12f). Barry v. PLxchange Trading Co , 1. Bastard v. Smith, 101. Batt, /,',', Wriglit V. Wliite, 24. Bayley v. Beaumont, 102. Beam'sh, lie, 18. Beardsley v. Cloncli, 7il. Beatty v. Bryce, 120. 121. Beaufort v. Ashburnham, 2(i, 43, 105. Bell V. Landon, 57. Bellchamber v. Giani, 2. Bellhouse v. Gunn, 127. Belmonte v. Aynard, 131. Bennett v. Bennett, 110. Bemiett v. Tregent, 33. Berry v. Pratt, 100. Beynon v. Godden (il. Bissett V. Strachan, 50. Blackmoro v. Edwards, 10. Blake v. Toronto Brewing and Malting Co., 5(5. Blakeley v. Ingram, 81. Bland v. Delano, 122. Blytho V. Fanahawe, 73 Boswell V. Coakg, 38. Boulton V. McNaughton, (5, 90. XIV TABLE OF CASES. Boulton V. Switzer, 34, 95. Bradley v. Bradley, 112, 114. Broadrick v. Clark, 82. Broad and Broad, 7^', 73. Bronson, In re, and Canada Atlantic Railway Co., 74. Brouso V. Cram, 8!). Brown, lie, Brown v. Brown, 24. Brown v. Porter, 31, (53. Brown v. Sewell, li.'j. Brunton v. Hardy, 24. Bryant v. Ikey, 122. Buckc V. Bucke, 36, 114. Burnhara v. Garvey, 5. C. Caine v. Coulson, 28. Campbell v. Holyland, 57. (Jameroii v. Campbell, 2'J, 30, 74. Cameron v. Lcroux, 22. Canada Permanent B. & S. Society v. Harris, 02. Canadian Bank of Connnerce v. Bruce, 123, 124, 128. Canadian Bank of Commerce v. Middle- ton, 132. Carruthers v. Armour, 48. Carr v. Carr, 112 Carter v. Stewart, 124. Carty v. City of Loudon, 10, 44, 71, 83. Chisholin v. Barnard, 07. Christie v. Cliristic, 03. Christie v. Couway, 121. Christopher v. Noxou, 3, 103. Cliurton V. l''rewen, 47, 80, Clack V. Carlan, 80. Clark V. Chipnuui, 8. Clark V. Croif^hton, 40, 50, 80. Clark V. l-'arroll, 123. Clark V. Gill, 101. Clark V. Union Firo Insurance Co. - Gaston's Case, 78, 85. Clarkson v. White, 10. Cockburn v. Edwards, 77. Cocks V. Peachy, 100. Colborne v. Thomas, 24. Coolidge V. Bank of Montreal, 4(). Cooper V. Boles, 80. Collins V. Carey, 80. Colonial Trust Co. v. Cameron. 80. Conger v. McKechnie, 42. Connelly v. Hill, 40. Connuse v. North American Railway Contracting Co., 37, StO. Copeland v. Blenheim, 3, 80. Corby v. Roblin, 8. Cosgrave v. Evans, 100. Coulson V. Spiers, 110. Cousineau v. (Mty of London Assurance Co., 73. Cox V. Fenn, 122. Craddock v. Piper, 30. (Crawford v. Lundy, 38. Crerar & Muir, lie, 79. Cross V. Durell, 93. CuUen V. Crllen, 4(), 00. Cutler V. Morse, 'JO. D. Darling v. CuUaton, 123. Davidson v. Grange, 8, 40. Davis V. Thomas, !)0. Dempsey v. Ca»[)ar, 130. Dennison v. Devlin, 1. Dewar v. Orr, 20, 34. Dodge V. Clapp, 22. Dominion etc. v. Stinson, 20, 00. Douglass V. Burnham, 119. Dowdell v. Australian Royal Mail Co., 99, 100. Dundas v. Darvill, 129. Dunn v. Dunn, 11. TABLE OP CASES. W 3urance E. Earl of Shrewsbury v. Trappes, 104. Easton v. London .ioint Stock Bank, 66 Edwards v. Great Western Railway Co., 28, 59. Edwards v. Pearson, 60. Elderton v. Emmens, 105. Elliott V. Wilson, 53. Ellis V. Walmsley, 2. Ei imona v. Crooks, 11. Essex V. Parke, 29. Evans, Re, 84. Eveleit,'h v. Salisbury, 124. Farquhar v Robertson, 82. Pauchier & Son v. St. Louis, 91. Ferris v. Ferris, 109, III. Fisher v. Berrell, 96. Fisher v Green, 9. Fitch, Re, 8. Fitzgerald v. Ludwig, 31. Fleinmiiig, Re, 4, 60. Fleury, Re, Pleury v. Fleury, 22. Fo.x V. Toronto & N.R.R. Co., 25, 2fi, 35. 43, 98, 105. Fraser, J. S., a Solicitor, Re, 68, 76. Freeman v. Springhain, 20,80. Fryer v. Sturt, 106. &. Gage V. Campbell, 41. Gage V. Canada Publishing Co,, 14, 27 ()0. fialloway v. Keyworth, 95, 103. Geddes & Wilson, Solicitors, Re, 67, 75 84. ^ , George T. Smith Co. v. Greey, 45. Gibson v. Annis, 38. Gildersleeve v. Cowan, 89. Glennie v. Glennic, 109. Goodfellow V. Shuttleworth, ;v>, 104. Goodluie V. Carter, 90. Goodman v. Blake, 1:29. Gosnell v. Bishop, 49. Gough V. Park, 70, 84, 86. Graham v. Machell, 31. Gray v. Alexander, 126. Great Northern Committee, Tlie, v. Frett, 57. Green v. Briggs, 66 Green v. Smith, 25, .V> 45. Griffen v. Allen, 2, 56. Grimsby v. Webster, 82. Gueret v. Young, 107. IL Haffey v. llaffey, 112. Ham V. Lasher, 14, 20, 42, 71, 93, 106. Hamyln v. Betteley, 119. Harrington v. Fall, 52. Harris v, Hillard, 55. Harris v. Jewell, 46. Harrison v. Leutner, 2, 56. Haslam v. O'Connor, 19. Hatch V. Searles, 48. Hatt V. Park, 48, Heaslip v. Heaslip. 73. Heward v. Ilidout. 5. Hendricks v. Hendricks, 23. Hillyard, Re, and The Koval [nsin'ance Co., 13. Hind V. Whitmore. 55. Hogg V. Crabbo, 32. 66. Holman v. Stephens, 28. Hooker v. Gurnett, 82. Hoole V. Roberts, H3. Hooper v. Burley, (5, Hooper V. Bushel], 5h. XVI TABLE OF CASKS. H'joper V. Hooper, llf!. Hopkins v. ^^mitli, 31. Howes V. Barber, W. Hughes V. Birkenlieiul Commissioners, fiti. Improvement Ingram v. Ingrain. ll:j. Janes v. Whitbread, J '27. Jewell V. Parr, 25, 10."). Jenkins v. Kyan, .'SO. K. Keim v. Yeagley, 59, 68 Keith V. Keith, 110. Kelley v. Ardell, 40. Kent V. Great Western K. Co.. 'JH, o() Kennedy v. Lawlor, ()2, 77. Kerr v. Eickard, 115. King V. Connor, 57. King V. Moyer, 7'J. Kleim v. Union Fire Insurance Co., 7!*. Knapp V. Kuapp, 109, 115. Knight, Be, 48. Lalonde v. Lalonde, 114. Latour v. Smith, 15, (50, 100. Lawric v. Wilson, 05. Lawrason v. Buckley, 91. Ledyard v. McLean, 100. Leonard v. Leonard, 111. Lewis V. Holding, 129. Little V. Hawkins, ;iO. Lopes V. De Tastet, 98. Lovell V. Wardropur, IHl. Lucas V. Fraser, 57, 71. M. Macbeth v. Smart, 11. Mncdonald, Macdonald & Marsh, lU, 79. Magurn v. Magurn, 109, 114. Mailoch V. Urier, 02. Malone v. Davies, 15, 50, 79. Mauary v. Dash, i(3. Manitoba A N. W. Hy. Co. v. Koutley, 125. Martin v. Andrews, 97. Massey Manufacturing Co. v. Gaudry, 129. Masuret v. Lansdell, 119. Meiglien v. Buell, HO, 81. Melborne v. City of Toronto, 38. Merchants Bank v. Musgrove, 88. Miller v. Thompson, 95. Montague Uh, and the Township of .-Vld- borough, 13, 80. Moore v. Buckuer, 89. Moore v. Moore, 111. Morland v. Chitty, 122, 120. Morris v. Armit, 11, 20. Morris v. Hunt, 107. Morshead v. Reynolds, 48. Morton v. Grand Trunk H. Co.. 04. Mortimer, He, 85. MoBsop V. Mason, 49. Mounsey v. Earl of Lonsdale, 2, 55. Murphy v. Nolan, 102. TABLE OF CASES. XVII lie, 79. Mc. McBride, Iv re, Farley v. Davis, fi?. McCallum v. McCallum, 20, 35. 42, 50. McColl Re, McColl v. McOoU. 24 McDonr.ld .. McCii'' 78. McDouf^all V. Cairipudll, IIG. McGannon v. Clarke, 55, 103. Mclntyre v. Canada Co., 5, 'H). McKay v. McKay, 109. McKay v. Keofer, 47. McLean v. Bruce, 6. McLean v. Evans, 71, 94, 95. McLaren v. Canada Central E. Co., 130. McLeod V. Boulton, 58. McMillan v. McDonald, 30, 64. McMorris, Re, 91. McRae Re, and Ontario & Quebec R. Co., 13, 83. N. Nash V. Glover, (5. Neal Re, 61. Nelson Re, 102 Nolan V. Nolan, 112. North Victoria Election Case, Re, S^. O. O'Brien v. Bull, 90, 126. O'Donohoe, a Solicitor, R^, 77. Odell V. Doty, 90. Ogden V. (Vaig. 124. O'Malley v. Killmallack, 107. Ontario v. Winnaker, 81. Ontario Bank v. Leacock, 65. Ontario Bank v. Revell, 126. Oram y. Sheldon, 122. O'SuUivan v. Cluxton, 88. Outwater v. Mullett, 33, 36. Oxfordahirc, In re, 122. Page, Re, 18. 69. Paine v. Chapman, 40. Parsons v. The Standard Insurance (^o 12. Parkhill v. McLeod, 46. Parkinson v. Thompson. 31. Pattison v. McNnh, 30, 63. Peck, /;( re, and Gait, 55. Pegg V. Pegg, 34, 96. Pender, In re, 3. Pennell v. Roy, 56. Petrie v. Guelph Lumber Co., 36, 39. Philby V. Ikey, 122. Phipps V. Beamor, 119. Picasso V. Trustees of Maryport Har- hour. 100. Pilgrim v. Southampton A Dorchester R. Co., 19, 105. Plating Co. v. Farquharson, 56. Piatt V. Attrill, 3. Piatt V. Grand Trunk R. Co., 27. Plunkett V. Williams, 104. Pooley, Ih re, 81. Prescott Election Case, In re, 96. Prince v. Samo, 24. Pringle v. McDonald, 29, 59. Privett V. Pearson, 40. R. Radcliffe v. Hall, 105. Rae V. Trim, 35. Randall, B<; 42. Rankin v. Rankin, 37. Bedford v. Todd, 6. Rees V. Attorney-General, 31. Regina v. Justices of Huron, 2. Reid V. Murphy, 127. Rew V. Anthony, 71. Richardson, hi re, 69, 74. Ringrose v. Ringro«e, 110, 112. XVlll TABLE OF CASES. Robb V. Connor, 84. Roblin V. Roblin, 10<), 110. Robertson, Ee, liobertson v. Robertson, (), 40, 70, 90. Rodgers v. Rodf^ers, 89. Rody V. Rody, 22. Rusliworth V. Wilson, 103. Ruttcr V. Chapman, 58 S. Sarilier v. Smith, 8. Salois V. Walker, 94. Sanders v. Christie, 5-'). Savage, In re, 7. Sayers, Re, Sayers v. Kirkpatrick, 23. Scales V. Sarj^eson, 125, 128. Scanlan v. McDonouj^h, 76. Schimmel v. Lousada, 98. Schwob V. McLauf^hlin, 31. Sclater v. Cottani, 81. Scott V. Griffen, 47, 101. Scott V. Grand Trunk R. Co., 29. Segsworth v. Meridian Silver Plating Co., 130. Sharp V. Lush, 16. Sharp V. Wright, 42. Sinden v. Sinden, 109. Skelton v. Seward, 103. Skinner, Geo. A., a Solicitor, Re, 68. Smith & Crooks v. Graham, 36, 79. Smith v. Corporation of Ancaster Town- ship, 40. Smith v. Earl of Effingham, 66. Snell, He, 85. Snider v. Orr, 60. Snider v. Snider, 90. Solicitors, In re, 93. Soulea V. Soules, 109. Sovereign v. Sovereign,-8'J. Spencer v. Barragh, 58. Bpafford v. Buchanan, 97. Springer v. Clarke, 90. Steubing, Re, Anthers v. Dewer, 23. Stephens v. Lord Newborough, 6, 60. Stephens v. Keating, 49. Stephens v. Rogers, 124. Stevenson v. Hodder, 52. Strange t. Toronto Telegraph Co., 120. St. Olaf, The, 41. Stuart v. Greenall, 6, 60. Stumm v. Dixon, 39. Suckling V. Gabb, 41. Sutherland v. Phippen, 0, 101. Swain v. Stoddart, 132. Sweetman v. Jlorrison, 132. Swensden v. Wallace, &'>. T. Temperly v. Scott, 100. Thompson v. Milliken, 69. Thompson v. Shedden, 122. Torrance v. Torrance, 51. Totten, Re, 15, 84. Tremain v. Barrett, 98. Trent v. Harrison, 93. Turner v. Collins, 75. Turner v. Turner, 101. V. Vanderwaters v. Horton, 89. Vaustaden v. Vanstaden, 3, 124, 128. W. Waddilove v. Taylor, 82. Waller v. Clarris, 15. 35, 52, 57. Walton v. Henry, 49. Walker v. Niles, 122, 131. Walker v. Walker, 112. W w w w w w w w w w w w w \v w w TABLE OF CASES. XIX , 23 6, CO. :3o., 120. Warner v. Moses, 28. Webb V. Mansell, 1. Webb V. McArtliur, 88. Webster, Ex parte, 15, 27, IJ.5. Webster v. Mauby, 49. Wemys v. Greenwood, 82. White V. Bromige. 10. Wliite V. Brett, 107. Whitehead v. Brown, 29, 82. Wickham, Re, 61. Wilkens v. Peatman, 12,S, 128. Wills V. Hopkins, 128. Wilkinson Plough Co. v. Garrett, 53. Wilson V. Baird, oH. Wilson V. Moulds, 'Jl. Williamson v. Town of Aylmer, 08, 84. Windham ''. Bainton, 97. Woodhall, Re, Garbntt v. Ilewson, 89. Woods, Re, Whittrick v. Woods, 23. Workingmen's Mutual Society, Re, 18, 101. Wormsley, Re, Biiines v. Wormsley, 88. Y. Yglesias v. Hoyal Exchange Corpora. tion, 24. Youngs, Re, (il. Young, In re, and London, etc., Co., 59, , 128. ERRATA. Pa«e 96, line 7, for '• was allowed." read " were allowed." Page 121, line 21, for " 8 P. R.," read " y P. R." Page 129, line 13, for " Gandry," read " Gaudry." i i A MANUAL ON THE TAXATION OF COSTS. Abandoned 9IotioD. Where a party moving does not appear the motion is called an abandoned motion, and the opposite party is en- titled to ask for the costs of it. Berry v. Exchange Trad- ing Company, 1 Q. B. D. 77. A motion for an injunction had been served by the plain- tiff and when it was brought on time was asked to answer athdavits, which was granted, and the motion stood over- accordingly. Subsequently the plaintiff served the defend dant with a notice that he intended abandoning the appli- cation. ^*^ Held, that the defendant was entitled to the costs of a motion refused, and not merely the costs of an abandoned motion. Denmson v. Devlin, 11 Gr. 84. Where a notice of appeal is given, but the appeal is not put on the paper by the party giving the notice, the other party ought not to appear, but may make a substantive application for the costs of the motion. Wehh v. Hansel, ^ ^. x5. D. 11" W.T.G. — 1 "L ABORTIVE PROCEEDINGS. Under the former practice, where after a rule niu for a mandamus had been served, the appUcant gave notice that it would not be proceeded with, but did not offer to pay any costs, the Cr^urt on application discharged the rule with costs up to the time of the notice, and costs of the applica- tion. Refjina v. Justices of Huron, 31 U. C. Q. B. 335. A pe*'son in contempt cannot apply for the costs of an abandoned motion. KUis v. Wclmsley, 4 L. J. Ch. 461. A motion cannot be renewed until the costs of an aban- doned motion for the same purpose are paid. BeUchamber V. Giani, 3 Mad. 550. Costs of affidavits prepared but not filed when the motion is abandoned, are taxable, llnrruon v. Leutnei\ 16 Ch. D. 659. Where a motion is treated as abandoned and the opposite party intends to ask for the costs of an abandoned motion, he ought before doing so to communicate his intention to the party by whom the motion was made. Aitkeit v. Dun- bar, 25 W. R. 366 ; Grijfen v. Allen, 11 Ch. D. 913 ; 2a W. R. 10. Abortive Proceed iii}>;!«. The costs of abortive proceedings are disallowed unless^ they are specially allowed by order or judgment. Where an application was made to strike out a jury notice, and the motion was referred by the I'^cal Master to the trial Judge, and nothing further was done, costs should be disallowed. See Report I. L. 0. 1885, p. 25. But see Mounaey v. Earl of Lonsdale, 10 Eq. 557, under " Motions." adjournmi=;nt into court. 3 Where the successful party is not to blame for the p/o- ceedings proving abortive this rule does not apply. Where the first trial was abortive because tht, jury dis- agreed, and no order to the contrary was made by the Judge at the trial ; Held, that the party who ultimately succeeded was en- titled to tax the costs of the first trial. Copeland v. Blen- heim, 11 P. R. 54 ; and see Christopher v. Noxnn, 10 P. R. 149. The retirement of Blake, V.-C, who sat during the argu- ment, occurred before judgment, whereupon it was ordered that the pppeal should be re-argued before the Court as then constituted. Held, following In re Pender, 10 Jur. 891, that the suc- cessful party was entitled to the full costs of both argu- raenta. Piatt v. Attrill, 3 C. L. Times 543; 19 C. L. Journal 848. Afljoiiriinit'iit info t^oiirt. An adjournment into Court from Chambers is deemed to be part of the proceedings in Chambers ; the costs of such adjournment follow the same rule as the costs in Cham- bers ; and the party obtaining the adjournment into Court will r.ot be ordered to pay the costs thereof, evun if the (juestion appears to be unarguable, unless there was, in the opinion of the Court, misconduct in requiring the opinion of the Judge on the question. Where a respondent is ordered to pay the costs of an application, which has been adjourned into Court, ^Mit as to the costs of which no order would have been made if the question liad been decided in Chambers, the costs payable 4 ADMISSIONS. b}' him are Kirnply the costs occasioned by the adjoumment into Court. Dan. Chy. Pr. 973. See Re Fleinming, 11 P. E. 272. Admi^fiiioEiiN. Con. Rule 400. Each party is to admit such of the material allegations contained in the statement of claim or defence of the opposite party as are true ; or he may give notice, by his own statement or otherwise, that he admits for the purposes of the action the truth of the case generally, or of any part of the case, stated or referred to in the statement of claim or defence of the opposite or any other party. J. A. Eule 240. Con. Rule 617. Either party may call upon the other party to admit any documents, saving all just exceptions. J. A. Rule 241. Con. Rule 1189. When anything in the couvdc of an action or reference which ought to have been admitted, has not been admitted, the party who neglected or refused to make the admission may be oi'dered to pay the costs occasioned by his neglect or refusal. See Chy. 0. 234 ; J. A. Rule 163. Con. Rule 1190. No costs of proving a document shall be allowed unless a notice to admit has been given under Bule 617, except when the omission to give the notice is a aaving of expense. A party is not bound *o rely on the admissions of an opposite parly on his examination for discovery, and there- fore the costs of procuring the attendance of a witness to ADVERTISEMENT OF SALE — AFFIDAVITS. 6 prove what was then admitted should be taxed. Alexander V. School Trustees of Gloucester, 11 P. R. 157. See also Mclntyre v. Canada Co., 18 Gr. at p. 370. See " Notice to Admit." AdvortiKoiiieiit of Nale An advertisement was not properly drawn through the neglect of the party having the carriage of the decree, who now asked to have 't referred back to the Master. The advertisement was referred back to the Master, and the additional costs occasioned thereby were ordv^red to be paid by the applicant. Ileword v. liidout, 1 Chy. Ch. 244. See '• Sale." AfH«lavitH. Burnham v. Garvey, 27 Gr. 80. Motion for an injunc- tion. Spr\gok, C, " I give the plaintiff the general costs of the cause. I except, however, out of those costs, the costs of the atlidavits used on this application. I do so because those put in to be read by me are scarcely legible ; many words it is dilticult to decipher, and they can hardly bo made out except by reference to the context. This is in direct con- travention of G. 0. 67." G. (). G7 does not appear to have been fully incorporated into the Judicature Act, or the Consolidated Rules of Practice, but no doubt the practice as to taxation in respect to affidavits contravening the rule therein laid down will be followed. AFFIDAVITS. The costs of affidavits filed on a motion, but not entered in the order, will not be allowed even on a taxation as between solicitor and clien*^^. Stevens v. Lord Neivhorough, 11 Beav. 403: Stuart v. Gremall, 13 Price, 755. It is proper and necessary to nake an affidav^it of ser- vice of subpoena and appointment on, and payment of, conduct money to a party to be examined for discovery. McLean v. Brace, 12 P. E. 602. Where an affidavit had been made to prove certain items of disbursements, and these disbursements were disallowed on taxation : Held, that the charges for preparing the affidavit were also properly disallowed. Re Robertson, Robertson v. Robertson, 24 Gr. 555. Where plaintiff filed many useless affidavits, and had a great many repetitions as well as idle statements on infor- mation and belief in affidavits filed, a direction was given to the Master that they should not be allowed to the plain- tiff on taxation, though the defendant's summons was dis- charged with costs. Hooper v. Burley, 1 L. J. N. S. 225. One bailiff had served four defendants and made four separate affidavits of service. Spraooe, V.-C, " There is no necessity of four affidavits of service ; the costs of one only should be taxed." Boulton V. McNaughton, 1 Chy. Ch. 21G. Costs of unnecessary affidavits were disallowed in Red- ford V. Todd, 6 P. R. 154 ; and in Nash v. Glover, 6 1'. H. 267. A barrister or solicitor attending for cross-examination on an affidavit made on a motion is entitled to be paid $4 conduct money. Sutherland v. Vhipiien, 7 C. L. Times 432. 4 'i ■J, I AFFIDAVITS. 7 The local officers acting as Clerks at Assize, etc., have now instructionE to endorse on the Record the names of counsel engaged in the case at the trial, the number of wit- nesses sworn, and the time occupied by the trial. An affidavit to obtain increased counsel fees is, therefoie, unnecessary, and will not be allowed on taxation. Report I. L. 0. 1887. Iiupcrtinence and Scojulul in Affidavits. See Con. Rules, 421, 422. :;l In re Savage, 15 Ch. D. 557, parties lost their costs of a successful motion because they had filed an irrelevant affidavit containing improper imputations. Morrison, J., "I cannot refrain from noticing that in the affidavit made by the plaintiff's attorney, after negativing a statement of the defendant, and shewing why he declined to consent to delay at the Assizes, he states : " He (the defendant), then replied, I think it hardly fair that you should punish me for the act of my attorneys, and I then replied, that I considered keeping him dancing about the €ourt, and giving him a little trouble, might teach them all better manners for the future." " Such a statement, besides being wholly irrelevant and impertinent, coming from an officer of the Court, is highly unbecoming, and an affidavit containing such matter ought not to have been read or filed, and the doing so would of itself jus'-fy me in ordering the plaintiff's attor- ney to pay the costs of this application." And tho plaintiff's attorney was accordingly ordered to pay the deteudant's costs of the application. Anonymous, 4 P. R. 242. 8 AFFIDAVITS. An interpleader application by a sheriff: OsLER, J. A., " I should not have given costs in any case,, looking at the affidavit I have referred to, in which the Sheriff's officer is accused of intemperance, misapplication of moneys received by him, and which otherwise con'.ains much that is irrelevant and beside the merits of thp case.'' Vanstaden v. Vanstaden, 10 P. 11. 428. In re Fitch, 2 Chy. Ch, 288, affidavits containing allega- tions of misconduct on the part of the solicitor, altogether unconnected with the dealings between the solicitor and the client, were held scandalous and ordered to be taken off the files. See also Clark v. Chipman, 26 U. C. Q. B. 170 ; Curhy v. Rohlin, 5 U. C. L. J. 225; Davidson v. Grange, 5 P. R. 258; Sadlier v. Smith, 7 P. R. 409 ; Mor. & Wurt. 36. In drawing affidavits superlative words and needlessly offensive expressions should not be used, and where they are so ma.le use of the costs of such atlidavits should be disallowed on taxation. Wilson, J., "I regret to find in several instances lately,, that superlative words are used in stating facts in affidavits. There can be no stronger expression of the very truth than that it is stated on oath. If less certainly is intended, the statement should be qualified. The terms to which I object are, " / most positivelij sicear," etc. I can only show my disapproval of such language, by refusing to allow costs to be taxed for affidavits drawn in this style, when costs are in my discretion. In one of the affidavits before me I observe the expression that the statement made by another person in another affidavit was ' false.' I suppose the affidavit was drawn bj a young man of little experience^ AGENCY FKE8 — AMENDMENTS. » for the one had detailed a transaction in one light, and the other had stated the transaction in another light, hut the term ' false ' as applied hy one to the other, could in no way verify the statement of him who used the offensive expression." Fisher v. Green, 2 C. L. J. N. S. 16. Agency Fees. The former practice was to disallow all agency letters, where both principal and agent resided in the same county. Now necessary letters between a solicitor and his agent on the business of the cause are taxable as between party and party, whether the agent resides in the county town of the county where the solicitor resides, or in another county or in Toronto. Agneic v. Plunkett, 9 P. 11. 456. Mr. Winchester, in his report for 1885, states that the following letters had been disallowed in some bills of costs,, and should have been allowed : Letters to client, (1) advising of trial ; (2) result of case where judgment reserved ; (3) motion to change venue ; (4) result of application to Divisional Court. Letter to agents with papers to file and serve ; letter from agents advising that papers served ; letter from solicitor returning admission of service of papers sent by the opposite party. AiiieiKliiiieiitN. The general rule is that where a party desires to amend his own pleading, leave to amend will be given, but he must pay all costs of and occasioned by the amendment. Mor. & Wurt. 83. If a statement of claim is amended so as to set up a wholly different and inconsistent case from that originally 10 AMENDMENTS. made, the defendant will be entitled to all the costs of the action up to the time of the amendment. Mor & Wurt. 35. The original plaintiffs in the action were not entitled to any relief but by amendment, and a party plaintiff was added to whom relief was granted. The defendants were held entitled to the costs of the action up to the date of the amendment. Clarkson v. White, 4 Ont. R. 663. Pleadings may be amended by written alterations in the copies filed and served and by additions on paper to be interleared therewith if necessary : unless the amendments require the insertion of more than 200 words in any one place, or are so numerous or of such a nature that making them in the copies filed and served would render the same difficult or inconvenient to read ; in either of which cases the amendment must be made by delivering a re-print or fresh copy of the pleading as amended. Con. Eule, 431. Where, under Con. Eule 431, it becomes necessary to deliver a re-print or fresh copy of the pleading as amended, the solicitor (if he gets the costs of amendment) is entitled to ten cents per folio for each amended copy filed and served. He is also allowed twenty cents per folio for draft- ing the new matter for amendment, and not for the whole pleading as amended. Where leave is given to a plaintiff to amend upon pay- ment of costs, such costs should be paid or tendered before any further proceedings are had ; otherwise the defendant may apply to the Court to stay proceedings until the plain- tiff has made the required payment ; and if default is made in payment of the costs the action may be dismissed with costs. Blackmore v. Edwards, W. N. (1879) 175 ; White v. Bromige, 26 W. E. 312. APPEAL, PROCEEDINGS IN. 11 Where an irregularity was trifling, such as an omission to fill in the date of the entry of judgment for default, an amendment was allowed without costs. Dunu v. Dunn, 1 L. J. ; N. S. 239. Where the material upon which a party is moving; is defective, and he is allowed to amend or supply what is want- ing, he cannot tax the costs of doing so. Morria v. Armit, 4 Man. L. R. 307 ; 7 C. L. Times, 180. An application was made to amend the decree drawn up after judgment pronounced on the liearing, one of the terms having been omitted. Blake, C, " We think it reasonable that the indulgence which the plaintiff finds himself obliged to ask in this case should be granted at his expense. That seenis to us, as a general rule, to be highly reasonable. At law it is almost of universal application ; and Mr. Daniel would seem to regard it as equally prevalent in this Court." Emmons v. Crooks, 1 Gr. 558. le ih Appeiil, Proceeding!!! iu. The appeal bond and the affidavits of executic i and justification, are separate documents, and must be stamped as such when filed. Macbeth v. Smart, 1 Chy. Ch. 269. Instructions for appeal, or to oppose appeal, |2.00; revising proof of appeal book, 10 cents per folio ; fee settling reasons for appeal, or against appeal, in an ordi- nary case, $5.00. Burton, J.A., " There is no item in the tariff for instructions for appeal, unless it is considered as instruc tions for a step in the cause. The $4 is confined to instructions to sue or defend. It is, therefore, simply a 12 APPEAL, PROCEEDINGS IN. question of whether anything should be allowed, or, by analogy to those proceedings wherein instructions are allowed during the progress of the cause, the fee of $2. I therefore decline to interfere, (the taxing officer had allowed $2 instead of $4.) I think there is no reaso'i to interfere with the previous decision in this Court a& to allowing 10 cents for revising proof. It is, I think, little enough if the work is properly done ; and, if not properly done, then the Court should adhere to its rule and disallow this charge altogether. I think a fee of $5 would not be unreasonable for revis- ing and settling reasons of appeal in an ordinary case, and that would be a proper sum to allow here." Barber v. Morton, 2 C. L. Times, 310. For correspondence during appeal, see item 134 of tariff. As to printing appeal books, see Holmested & Langton, p. 681. Parsons v. The Standard Insurance Co., 4 App. E. 326. Burton, J.A., " Our attention has been called to the unnecessary length of the appeal books in this case. The simple question for decision was, the construction to be placed upon the condition of a policy of insurance, and the case might have been stated upon two, or at least three, pages of this appeal book. Instead of this a mass of evi- dence and other matter has been printed, having no bear- ing whatever upon the point presented for adjudication, covering 129 pages, and imposing upon us an enormous labor and waste of time in the perusal of it. It appears to us to be a very grave abuse and violation of the rules which we have made on the subject, and we do not intend to impose upon the Registrar the task which the appellants ARBITRATORS AND ARBITRATIONS. 18 have cast upon us, of wading through this mass of matter for the purpose of discovering whether some portion of it ma}' properly be appHcable to this appeal, but we disallow the whole of the appeal books in the taxation. If a similar case should occur again after this warning, it will be our duty seriously to consider whether it is not a sufficient reason for refusing the whole costs of the appeal." Pages 329, 830. i Arbitrators and Arbitrationfi. Where the taxing officer taxed to the arbitrators a per diem allowance, held, he was right in disallowing their travelling expenses. The amount to be allowed per diem to arbitrators and counsel is a matter peculiarly within the province of the taxing officer, and will not, generally, be interfered with. Re Hilljjnrd and The Roy. IVehster, 22 Chy. 1). 136. A Master or a single .Judge has no discretion to allow more than $1 per hour on the taxation of a bill of costs, either between solicitor and clienc, or party and party ; the tariff being fixed at that rate. Re Totten, 8 P. R. 385. Plaintift' sued for damages for bodily injuries sustained and got a verdict. An order was made, [before trial, for 16 ATTENDANCES. S: I r the examination of the plaintiff by medical men on behalf of the defendants. The plaintiff's own physician attended on him during the examination, and was called as a wit- ness at the trial, and stated what his charges for attend- ance on the plaintiff amounted to. Held, that there being nothing to shew that he did not include in his statement the charges for attendance at the examination, they must be taken to have been included in the verdict, and could not be taxed to the plaintiff as part of the costs of the action. Ca7-ty v. City of London, 13 P. R. 285 ; 9 C. L. Times 457. Administration Proceedings. Upon a warrant to consider the Master has power to direct what parties shall attend on the several accounts and inquiries. See Con. Rules 6o, 322, 334 ; Holmested & Langton, 352 ; Mor. & Wurt. 137. " The law stards in this way, that any persons interested •who ought to be served can, under the general practice, attend, as of course, the proceedings ; but that does not entitle them to the costs of attending. That is determined by the Judge in Chambers, who, under a general order, decides what parties interested in the estate shall attend the taking of the accounts at the cost of the estate ; that is the subject of a special application. I cannot prevent anybody attending the proceedings ; if there were fifty people, I could not prevent them instructing fifty solicitors to attend all the proceedings ; but if they did, they would not only pay their own costs where 1 found forty-eight of them unnecessary, bnf I should make them pay the extra costs occasioned by attending unnecessarily. That has always been the ^jractice in my Chambers since I ha 'e had the honour of sitting here." Per Jessel, M.li., Sharp v. Lush, 10 Gh. D. 473. :V% III AITOTIONEER. 17 Attending for writ. This is allowed as a common attend- ance besides the $2 for the writ. Rep. I. L. 0. 1885, p. 24. Attending sheriff with writ to serve. Attending sheriff for writ when served. Attending sheriff for fees (mileage). Tlie solicitor '.s entitled to charge for each attendance. lb. Attending to enter action for trial, — attending to deposit Record. The solicitor is entitled to charge for both attend- ances, lb. Attending to have pleadings certified is a common attendance. lb. Attending on return of motion. Where a counsel fee is allowed no other fee is taxed for attendance on the motion. lb. Attending for certificate of taxation. No fee 's allowed. If necessary, it should be obtained when the taxation is completed. Ih. Attending for subpoena, a common attendance. Rep, I. L. 0. 1889. Attending to bespeak and for lis pendens. 5^ '00 should be allowed. lb. Attending return of writ from sheriff, where sheriff unable to serve it. Should be taxed as a common attendance. lb. Aiietioiio"r. " Sometimes a fixed LUm for the entire sale, or for each lot sold or bought in, is arranged to be paid to tlie auc- tioneer, for his remuneration ; and sometimes he is allowed a commission on each lot sold, and a fixed sura for each lot not sold. The amount in either case depends upon the w.T.c. — 2 ij 18 BRIEFS. magnitude of the sale, the ability and position of the auctioneer, the trouble he has had, or ia likely to have, in the business, and whether he is to pay any, and what expenses attending the sale, or to make any survey with a- view of lotting the property, or any valuation preparatory to fixing the reserved bidding. In any case, the terms should be approved by the chief clurk before the proposed auctioneer is appointed to sell." Dan. Chy. Pr. 1079 : lie Page, 9 Jur. N. S. lUG. Where the Master acts as .vj^^o -er be is entitled to charge $1.50 per hour, or if he travels more than two miles from his office $2 per hour, and 20 cents per mile travelled. Kep. I. L.O., 1889. An auctioneer was held entitled to fees as a professional witness in lie Worlcinymeus Mutual Society, 21 Chy. D. 831. '* ' Brielb. The brief should contain copies of the pleadings, a state- raent of the case of the party, and such observations on the case of the other side, and such materials " • loss-examin- ation as may be necessary, and should c ''ue with the proofs of the witnesses proposed to be calk;i' .' counsel's opinion has been taken on the evidence it should be copied at the end of the statement of the case. Copies of notices to produce and admit, and of any correspondence, opinions, or other necessary documents, should accompany the brief. Arch. Pr. 601. A solicitor should not part with original deeds belonging to his client, and in preparing briefs for counsel where these deeds are a necessary part of his case, they should bo briefed and allowed on taxp.tion. In re Beamish, 19 W. R. 740.— Ir. li. 1 -^ " ^\ -& BRIEFS. 19 /here ixU\ bo ^ R. Where one party, by his pleadings, puts in issue docu- ments which the other may reasonably expect will be read in evidence, and he accordingly has them briefed, the taxing otticer ought, in the exercise of his discretion, and having regard to the probable materiality and relevancy of these documents to the case as pleaded, to allow the costs of the brief containing them, if he considers that the party was justified in having them briefed ; even though they were not read in evidence at the hearing. Ilaslam v. (TConnor. 6 Ir. Eq. 615. A CRse having been made a remanet, a correspondence took place between the respective attorneys with a view to a reference, which failed : Jleld, that the Master exercised a proper discretion in disallowing copies of this correspondence ao part of the briefs in taxing the costs of the cause. Pilgrim v. South- ampton (inil l.)i)i'chester Jiailiray Co., 8 C. B. 25. " A brief of depositions or special affidavits is to be allowed only where fee and bri(>f for second counsel is taxed." Hep. I. L. 0. 1886. The writer submits that this direction to the taxing officers is not wholly correct. Some portions of the examination of the oppu8it«! party are, generally, put in as evidence at the trial. These portions are required to be marked by counsel when put in. If the depositions are not briefed counsel can not know exactly what evidence has been pat in in this way without referring to the exhibits. Where argument takes place after the trial, or l)efore a Divisional Court, it would he extre.nely inconvenient not to have copies of the depositions on the brief, marked to correspond with the depositions put in at the trial. Wherever, there- fore, depositions of the opposite party have been read at the 20 CHEQUES IN COURl. 01 I' if ti ■ ■•::;[ I trial and put in as evidence, the solicitor should be allowed for briefing a copy of the depositions, even where there is one brief only. Where a copy of the brief was actually prepared for second counsel for the defendant, the accidental absence of the counsel at the trial should not deprive the defendant of the charge for such brief. Ham v. Lasher, 24 CJ. C. Q. B. 357. A second term brief was allowed at the amount for which a second copy of the evidence could have been procured from the shorthand writer. Morris v. Armit, 4 Man. L. E. 307 ; 7 C. L. Times, 180, Occ. N. Where the brief itself is allowed instructions for brief should also be allowed. McCallum v. McCallum, 11 P. B. 179. A plaintiff is not in any case entitled to the costs of preparing for trial, such as instructions for brief, drawing anf] copying briefs and documents, and advising on evidence, until after notice of trial is given. Freeman v. Spriiujhavi, 14 C. B. ; N. S. 11)7 ; 32 L. J. C. P. 249. Where a bill had been dismissed, before notice of hearing was given, and the Master allowed a counsel fee of $15 on the allegation that the brief had been given to counsel im- mediately after the filing of replication, — On appeal, Stbonq, V.-C, baid the English practice should be followed ; and no brief or counsel fee allowed until after the cause is set down and notice of hearing given. l)euar V. Orr, 3 Chy. Ch. 141. CheqiicN in Court. See Armitage v. Armitagc, 3 C. L. Times, 172, under " CommisBion in Lieu of Costs." COMMISSION IN LIEU OF COSTS. Commisttiioii in I^icn of Costs. 21 Con. Rule 1187. In all actions or proceedings instituted for administration, or partition, or administration and partition, unless otherwise ordered by the Court or a Judge, instead of the costs being allowed according to the tariff, each person properly represented by a solicitor, and entitled to costs out of the estate, other ' uan creditors not parties to the action or proceeding, shall be entitled to his actual disbursements in the action or proceeding, not including counsel fees, and there shall be allowed for the other costs of the suit payable out of the estate, a commission on the amount realized, or on the value of the property parti- tioned in the action or proceeding, which commission shall be apportioned amongst the persons entitled to costs, as the Judge or Master thinks proper. Such commission shall be as follo~'s : — On sums not exceeding $600 20 per cent. For every additional $100 up to $1,500... 5 " For every additional $100 up to $4,000... 3 " For every additional $1,000 up to $10,000 2^ For every additional $1,000 1 and such remuneration shall be in lieu of all fees, whether between " party and party," " as between solicitor and client," or " between solicitor and client." Chy. 0. 648. The commission under this Eule does not cover costs of interlocutory proceedings, where one party is ordered to pay costs to another party. The commission should only be apportioned among those parties to the actiow or proceeding who would otherwise be awarded taxed costs. Parties added in the Master's olBce, and who have the same interests as other parties appearing by solicitor, and whose interests are thereby already suihciently protected, should not share in the commission. See " References." 22 COMMISSION IN HKi," OF COSTS. "'I I il I ill «' I 1 The division of the commission should be in fractional parts, proi»ortionate to the work done and responsibility involved. Dodge v. Clapp, 8 P. R. 388; Cameron v. Leroux, 9 P. R. 304. The commission covers all the costs of the action. On a motion for distribution the plaintiff asked that a lump sum be allowed for the costs and disbursements of the motion. The Chancellor refused to allow any sum for costs and disbursements over and above the amounts found in tiie report. Ite Fleury, Fleiiry v. Fleiiry, 9 P. R. 87. Where other matters are involved in the action besides a simple administration of the estate, e.g. where the con- struction of a will is asked for, taxed costs will be allowed up to judgment, in addition to commission. Rody v. Rody, 2 C. L. Times., 86. But the commission does not cover the costs of getting out of Court the cheques for the parties entitled thereto. The plaintiff's solicitors were instructed by certain legatees to obtain cheques for the amounts found due tb--m by the Master's report, and the solicitors procured ,he cheques and charged the legatees with the costs of procuring them. The legatees objected to pay these ccsts, on the ground that the plaintiffs' solicitors liad already been paid therefor by the commission allowed them ; and that the legacies should be paid to them without any deduction whatever ; Held, Mr. Dalton, M.C., that the solicitors were entitled to the costs in question ; for it was no part of their duty, as solicitors having the conduct of the cause, to tuKb out and deliver to legatees or creditors their respective cheques, but if they notify them that they may attend and procure their cheques they have done all that is required of them. Armitarje v. Annitaye, 3 0. L. Times 172. The scope of Con. Rule 1187 is merely to aid in fixing a solicitor's remuneration. It is not intended to do strict % COMMISSION IN LIEU OF C08TB. 23 i ^t justice, but is only a sort of convenient expedient for fixing costs without taxation. A very liberal compensation is not per sn a reason for reducing the commission, or directing a taxation of the bill in its stead, nor per contra is a low or inordinate compen- sation . reason for increasing the commission or directing payment by a taxed l)ill. Si'mhle, that where any party interested in the estate desires that a solicitor should be paid on tlie scale of a taxed bill instead of by commission he should give notice to the solicitor to that effect, and have the Master note it in his book, at the earliest possible stage of the proceedings ; but there is no practice authorizing the substitution of a bill of costs for commission at the option of any party. In re Stuehinri, Anthers v. Deivar, 10 P. R. 236. Where there has been an unusual amount of work done and responsibility borne by the solicitors the Court will increase the commission or give taxed costs. In re Sayers, Sayers v. Kirkpatrick, 1 C. L. Times 439. The Mas+.er has no power to order taxed costs under this Rule ; that can only be done by a Judge of the High ■Court. Hendricks v. Hendricks, 13 P. R. 79. The proceeds of the personalty and the realty must be added together and the commission computed thereon as on ono sum realized. In re IVoods, Whittrick v. Woods, 4 C. L. Times 134. Laud was subject to a mortgage and the mortgagee refused to consent to a sale free from the mortgage. Held, Blakk, V.-C, that the Master was right in allowing commission only on the amount realized, being the actual value of the intereL.t of the intestate in the land. Had the mortgagee consented to a sale free from his mortgage then the commission would have been estimated on the whole i 111 .;i ill ii;r'; ! il 111 ;i ell ' 24 COMMISSION TO TAKE EVIDENCE. amount. Re McCoU, McColl v. McGoll, 8 P. R. 480 ; 1 C. L. Times 283. The commission, however, is to be calculated on the total amount accounted for, and not merely on th(! net amount in the hands of the accounting party. Where the personal representative had received $2,451.17 and expended $1,625.97, leaving a balance of $825.20 in his hands, and the Master allowed commission on $2,451.17. Proudfoot, J., " This matter has been mentioned to me by the accountant, who referred me to the case of Re Mc- Coll, McColl V. McColl, 8 P. R. 480. I at first thuught that the case was governed by that decision, but on further consideration I do not think that it is, and that the Master has properly allowed the commission on the gross amount accounted for in this action." Re Brown, Brown v. Brown ^ 19 C. L. Journal 367 ; 3 C. L. Times 595. And see Re Batt, Wright v. White, 9 P. R. 447. Coinmissioii to Take f^vidence. The costs of a commission to take evidence in a foreign country form part of the costs of the cause. Colborne v. Thomas, 4 Gr. 169 ; Prince v. Samo, 4 D. P. C. 5. The rule is the same where the commission is to examine a party on his own behalf. Brunton v. Hardy, 10 W. R 562. The expenses of sending a barrister as a commissioner to examine witnesses abroad may be allowed in a proper case. YgUsiaa v. Royal Exchange Corporation, L. R. 5 C. P. 141. As to costs where parties join in a commission. See Con. Rule 603. The costs of executing a commission are entirely in the discretion of the taxing officer ; and where the amount % "% COMMISSION TO TAKE EVIDENCE. 25 the uut paid to the commissioner was twenty-two guineas, and the Master on taxation disallowed twelve, the Court refused to interfere. Morrison, J., " It can hardly be said that no matter what amount may be paid to a commissioner, the Master should allow it. A great deal necessarily depends upon the standing of the commissioner. If lie is a professional gentleman, in some case ten guineas a day may be a reasonable charge to be allowed ; that would depend entirely upon the standing of the commissioner, and the necessity for the services of a gentleman whose time is so valuable. In ordinary cases I should Bay that five guineas a sitting was reasonable." Fox v. Toronto and Nipissirig Raihcay Co., 7 P. R. 157. In Oreey v. Smith, 7 C. L. Timefi 168, $20 per diem was allowed as solicitor's charges for amending at Chicago on a commission issued by the opposite party. A commission was taken out by the defendant to examine a witness in Paris. At the trial the plaintifif's counsel abandoned that part of his case to which the evidence under the commission applied, and the defendant had a verdict on that issue. Held, that he was entitled to the costs of the commission. Jetoell V. Parr, 17 C. B. 636 ; 2 C. B. N. S. 809. The plaintiffs obtained an order for the issue of a foreign commission. The order contained the usual direction that the costs be costs in the cause. The evidence was taken, and the plaintiffs succeeded in the suit, but the evidence was not put in at the trial. The taxing officer disallowed the costs of the commission on the ground that the evidence was not used. Boyd, C, held that the direction in the order as to costs did not preclude the taxing officer from disallowing the 26 COPIES. 1 v l:S ill! f it ii|,i |i i't costs of the commiHsion to the plaintiffs. Dominion, etc., Co. V. Stinson, 9 P. li. 177 ; '2 C. L. Times 45. Sec also Ciirlinrt v. Robertson, 8 Scott. N. R. 288 ; 7 M. & G. 525, to the same effect. If a witness is so old and infirm that it is a prudent course to take his examination, but he is afterwards able to attend the trial, the party may be allowed the costs of the commission, as well as the costs of the witness's atten- dance at the trial. Ihuiufort v. Aahhnniham, 13 C. B. N. S. 598 ; 9 Jur. N. S. 822. See also F\)x v. Toronto (ind Nipissing Ruilivaif Co., 7 P. R. at p. 161. See Mclntifre v. CanntJn Co., 18 Gr. at p. 370, where the Court directed that the costs of a commission should not be allowed to the defendant where the facts were such that the defendant should have admitted thera. Copies. Con. Rule 395. Ever}' pleading may be either printed or written, or partly printed or partly written, but no more than four copies of any pleading or other document are to be allowed to any party in a cause or matter, exclusive of the draft, but inclusive of all other copies that may be required or made in the progress of the cause. J. A. Rule 129. Con. Rule 396. If more than tliree copies exclusive of the draft are required of any pleading or other document, the party may have the pleading or other document printed for the purposes of the cause or matter, and in that case he shall in lieu of all charges for copies be allowed thirty cents per folio of the pleading or document, and his reason- able disbursements of procuring the same to be printed. J. A. Rule 130. C0PIK8. 27 Con. Rule 452. The word folio shall mean one hundred words. Rules T. T. 185G, 167. See Con. Roles 447 to 457 as to copies and printing. *See Con. Rules 1183, 1184 as to copies of evidence and shorthand notes. Costs will not he allowed for copies of shorthand notes of evidence which are not used on the hearing,' of an appeal, the decision tiirniug on a point of law. Kj- p. Webster, 22 Ch. D. 136. Charges for procuring copies of opinions of judges in another action for the instruction of counsel, should not be taxed as between party and party. — Boyd, C. Piatt v. Grand Trunk Railway, 7 C. L. Times 400; 23 C. L. Journal 373. The trial began in October and continued four days, and was then adjourned till 22nd December after thirty-two witnesses had been examined, and 1185 folios of evidence had been taken. The plaintiff's solicitor procured a copy of this evidence for the use and convenience of counsel at the adjourned trial, when other witnesses were examined and the case argued. The t.axing officer ruled that it was the duty of the junior counsel to take notes of evidence, and disallowed the disbursement for the copy of the evidence. Held, Proudfoot, J., reversing his ruling, that the item should be allowed between party and party as a necessary disbursement at the trial of the action, (jarff v. Canada rublishinfi Co., 8 C. L. Times 207. The Court of Appeal had ordered part of an affidavit filed on behalf of the phiintiff to be expunged as scandalous, and had given the defendants their costs of the application as beiween solicitor and client. The taxing master disallowed the costs of copies of the pleadings for the use 28 COSTS BEFORE WRIT ISSUED. of the Council and the Judges, on the ground that it was not the practice to allow the expense of copies of pleadings except at the hearing. The Court reversed the decision, and allowed the costs of the copies, holding that the general rule laid down by the taxing master could not be sustained, and that as the copies were necessary to enable the case to be properly argued they must be allowed. Warner v. Moses, 19 Ch. D. 72. Costs Before Writ Issued. The only costs allowed on taxation, before the writ is issued, where the writ has been 'ssued, are necessary letters to defendants, unless by s 'e, or the practice of the Court, the plaintiff is requi.„^ to give some other particular notice, in which case the reasonable costs of the notice and service of it are taxable. Where a solicitor is retained to demand a debt, and the debtor pays the amount before the writ of summons is issued, the solicitor cannot insist on payment of any costs for his letter, or for instructions to sue. Gaine v. Gouhon, 82 L. J. Exch. 97 ; Holman v. Stephens, 6 Jur. N. S. 124. Where it was necessary to serve a railway company with notice of action the plaintiffs were allowed the costs of such notices. Kent v. Great Western Railway Go., 4 D. & L. 481 ; Edwards v. Great Western Railway Go., 12 C. B. 419. R. S. 0. 1887, chapter 73, requires notice to be given prior to action [against a justice of the peace, or other officer or person fulfilling a public duty, for anything done by him in the performance of such duty. E. S. 0. 1887, chapter 57, requires notice to be given in eertain cases in actions of libel. coj^ts in the cause. 29 The costs of preparing and serving these notices would be taxable. Prvujle v. McDonald, 7 P. R. 152. But in an action to set aside a conveyance as fraudulent the costs of preparing and tendering a reconveyance for execution, before service of the writ, are not taxable. Pringle v. McDonald, supra. Costs in the Cause. Burns, J., " The rule of what forms costs in the cause I take to be this : all rules which form part of the regular proceedings in the cause, and where costs are not men- tioned, t' (3 party substantially succeeding will be entitled to the custs of or opposing, as the case may b?, as part of the costs of the cause. Costs accruing upon irregular pro- ceedings should be provided for in any rule or order to be made, and if not provided for they do not form part of the costs of the cause." Cameron v. Campbell, 1 P. R 170. The phrase " costs in the cause " generally means the costs only of the party who is successful in the cause. But where the phrase was used in an award, as follows : " We also order and award that the plaiutifif and defendants shall each pay half the costs of the cause, and that the defendants shall pay all the costs of the reference and award, our costs of which reference and award as arbitra- tors we assess at the sum of $201.50," it was lield that the words " costs in the cause " meant the whole costs of the plaintiff and defendants.— Richards, C.J. Scott v. The Grand Trunk Railway Co., 3 P. K. 276. The costs of a special jury are costs in the cause, not costs of the day. Whitehead v. Brown, 2 0. S. 345. The costs of shewing cause against a rule for setting aside an award are costs in the cause. Essex v. Parke, 12 U. C. C. P. 159. I'' *■ I'i 30 C08T8 IN THE CAUSE. The plaintiff had obtained a decree with coBts against the defendant. Afterwards, by consent, a supplemental order varying tlie decree was mode, which was silent a& to costs. JId<}, that, thi costs of such order and proceedings there- undci" were not costs in the cause, and could not be taxed against the detundant. Attorneff-Gcneml v. Taylor, 1 (Ihy. Ch. 8G2. Where, after notice of motion to stay proceedings until the costs of a former suit for the same cause of action should ])e paid, such costs are paid ; the costs of the motion to sta}' proceedings will be made costs in the cause. Little V. Hau'kinH, 3 (]hy. Ch. 78. A motion was made to the presiding Jud^e at the Assizes to postpone the trial upon the ground of the absence of a necessary and material witness. The order was made and the question of costs reserved. liosK, J , " I reserved my decision to look at the case of Vdtthon V. MrNdl', 12 (yv. 483. I have also referred to MrMUldii V. MrDoiudd, 22 Or. 302. " It seems 'Avdv that in the Court of Chancery the rule was well estabiiHhed that where a party had made diligent effortn to secure the attendance of a witness within the jurisdiction of the Court, and failed to secure it from a cause which he could not control, then the costs of such an anplication would be c^osts in the cause, unless it was possible to take the evidence before a special examiner, or the knowledge of the fact that the attendance could not bo secured, came to the applicant in time to enable him to advise the other side ho that the witnesses might be notified not to attend. " I think, on the facts before me, the plaintiff was in no default, and that the costs must be costs in the cause. The COSTS OF THE DAY. 31 rule appears to be a just one, and I willingly follow it." Brown v. Porter, 11 P. E. 250. And see Graham v. Machell, 2 Ciiy. Ch. 376 ; and Ree$ V. Attorney-General, 3 Chy. Ch. 386. ViiHiH Ok' tlic l>uy. (Jndev the Common Law Procedure Act, where notice of trial was given, and the party giving the notice did not bring the issue to trial, he was bound to pay the costs of the day to the opposite party. The rule for these costs could be drawn up on affidavit without a motion therefor being made in (V>urt. R. S. 0. 1877, chap. 50, sees, 275, 276. For the former practice see Harrison's C. L. P. Act, 323. The Master in Chambers has held that this practice is superseded by the Judicature Act ; and though these costs may still be imposed as a very just condition, no officer of the Court has now power to issue a rule for such costs, nor has the Master iu Chambers jurisdiction to entertain an application for such costs. //(>y>/rj/(s v. Sniitli, [) V. II. 285. Where the plaintiff is [)revented from proceeding to trial by any act of the defendant, the defendant is not entitled to any costs of the day. I''il tt/erald v. Lmliciy, 7 P. R. 187 ; Parkinson v. Thomimm, -44 U. C. Q. B. 21). J3y an order ot the Master in Chambers the cause was brought down to be heard at sittings for tlie trial of actions in the Chancery Division, but the trial Judge refused to entertain the case as it came from a Common Law Division. Held, Cameron, C.J., reversing the ruling of the taxing officer, that the plaintiff was entitled to the coats of the day. Schwoh v. MeLancjhUn, 3 C. L. Times 172. 8 u I 82 COSTS OF THE DAY. In an action for damages for trespass to lands where the line fence was in dispute, the defendant in his depositions taken l)efore trial said he knew nothing about the line except what he had been told, but that he had traced the line as run by others. The trial was adjourned at the plaintiff's request on payment of the costs of the day. The defendant, who resided in the Northwest Territories, swore that he had come to the trial for the sole purpose of giving evidence on his own behalf, etc. Hie counnel also certified that he was a material witness. The taxing officer refused to allow his witness fees as part of the costs of the day, on the ground that he knew nothing about the boundary, and no other issue was before the Court, and therefore his evidence could not be material. Held, Pro'Jdfoot, J., reversing the ruling of the taxing officer, that it wa" premature for him to .'ecide, at this stage of the case, that no material evidence could be given by the defendant. Goodfellow v. Shuttlcworth, 3 C. L. Times 105. In riono V. Crahhe, 12 P. R. 14 ; 23 C. L. Journal 79. Proudfoot, J., held that where the trial had been post- poned at the Assizes upon payment of ''the cc's of the *lay " only one counsel fee of $10 was taxable. In a more recent case this decision was dissented from by Armour, C..T., who said : — " My brother Proudfoot was clearly under a misapprehension, or was misinformed as to the practice that obtained at common law in taxing costs of the day. The phrase " costs of the day " is a general term applicable to different circumstances, and varying with those circumstances. There were costs of the day for not proceeding to trial pursuant to the practice of the Court ; and in such cases no counsel fee was chargeable. Tlioro were cosi,s of the day for not proceeding to trial according to notice, that is, where the plaintiff gave notice COSTS OF THE DAY. 88 of trial and did not countermand it, but did not enter his record ; and in sucn cases it became and was the practice in the taxing office, although a counsel fee was chargeable, to tax only $10. There were costs of the day where the plaintiff gave notice of trial and entered his record, and afterwards withdrew it ; and counsel fees were in such cases chargeable, but were taxable according to the discre- tion of the taxing officer, and not according to any arbi- trary limit. And there were costs of the day where the plaintiff gave notice of trial and entered his record, and the defendant moved to postpone the trial, and it was postponed upon payment of the costs of the day ; and counsel fees were in such cases chargeable, but wore taxable according to the discretion of the taxing officer, and not according to any arbitrary limit. " Under the term ' costs of the day ' used in the order made by me in this case, counsel fees were chargeable and were taxable according to the discretion of the taxing officer, and not ai ording to any arbitrary limit." Outwater v. Mullett, 13 P. R. 509 ; 10 C. L. Times. 299. Where, before the commission day, an order had been obtained by the defendant to postpone the trial on payment of costs, and the plaintiff sought to tax a counsel fee as paid to the partner of the plaintiff' fi attorney, without shewing when or how paid ; and it appeared that the llecord had not been entered for trial, the Master refused to tax the counsel fee, and the Court sustained his ruling. Manary V. Dash, 9 L. J. 327. A judgment purchased by the defendant from a tliLd party, cannot be set off against the costs of the day, given to the plaintiff upon an application to postpone the trial, 80 as to defeat the solicitor's lien. Bennett v. Tregent, 6 P. K. 171. And see Con. Rule 1205. w.T.o. — 3 34 COUNSEL FEES. 3. I' Counsel Fees. In estimating the amount of fees to counsel the taxing officer should always have regard to the difficulty and complication of the questions of law and fact involved in the case, and the importance of the result of it to the parties. The fees bona fide paid by a solicitor to counsel and fairly required by the magnitude or complication of the case should be allowed on taxation between party and party. Rohh v. Connor, 9 Ir. li. Eq. 373. Counsel fee should be exclusively, as for fee with brief at the trial. Boulton v. 8witzei\ 1 Ch. Rep. 83. Harrison, C.J., " Where a brief has been delivered ta counsel for the Jtomi tide purpose of procuring his atten- dance at the trial, and his fee paid as it ought to be at the time of the delivery of the brief, the mere circumstance that he is, from no fault of his own, unable to be present at the trial, is no good reason for refusing to tax the fee paid to him in the event of the person paying him succeed- ing in the litigation. [Taylor v. Clarke, 13 I. C. L. E. 571. See also Henderson v. Connor, 3 U. C. L. J. 29.) In this Province a practice has sprung up of taxing fees to counsel in every case without any proof of payment, and the con- sequence is,fthat although the fees are taxed and paid, they do not always reach the counsel who earned them. But it must for the honor of ttie profession be stated that this does not often happen." In re North Victoria Election, 39 U. C. Q. B. 152. A counsel feu with brief at trial is not taxable until notice of trial has been given. Dewar v. Orr, 3 Ohy. Ch. 141 ; Peart v. Pegg, 7 U. C. Q. B. 220. Where alperson who was both a barrister and solicitor in Ontario attended Chicago on a commission to take evidence, COUNSEL FEES. 35 the taxing officer ruled that a char^je of $20 per diem was to be regarded as for a solicitor's attendance and not as a counsel fee. Greey v. Smith, 7 C. L. Times 188. For counsel fees taxable under an order giving the costs of the day, see OuUcater v. Mullett, 13 P. R. 509. Ante, under " Costs of the Day." The Master declined to tax a counsel fee for consultation between counsel previous to the trial, and on appeal Morrison, J., declined to make a precedent for the allow- ance of such a disbursement. Fox v. The Toronto und Nipissinfi lidilway Co., 7 P. E. 157. A counsel fee of $5 for each necessary and proper enlargement of a Court motion should be allowed. McGallum v. Mcddlum, 11 P. B. 179. A counsel fee will not be allowed where counsel attends on a motion merely to siiew that the motion is irregular. Waller v. Claris, 11 P. R. 130. Or where notice of appeal is served on a party whom the appeal does not affect, and he attends on the hearing of the appeal. Ex p. Webster, 22 Chy. D. 136. The local taxing officers cannot allow larger fees to counsel than $40 and $20 without fiat, even by the consent of the solicitors. Rep. I. L. 0. 1887. Where evidence taken before a blaster sitting for a Judge was entered in the decree as having been taken in Court, the same fees were; taxed to counsel before the Master as before a Judge. line v. Trim, 8 P. R. 405. In an alimony suik a decree was made by consent whereby the defendant was ordered to " pay the plaintiff the sum of $75 and all diaburHements in the suit as between solicitor and client." Held, that the Master had properly allowed to the plain- tiff a sum of $50, paid by her to her solicitors, they being » 3 86 COUNSEL FEES. II also counsel, for counsel fees on the examination and hear- ing of the cause. Bucke v. Biicke, 21 Gr. 77. In taxing the costs of an arbitration upon the county court scale, no larger counsel fee before the arbitrators tiian $25 can be taxed, even though the attendance is for several days. Re Montague, etc., 12 P. E. 141. Where three actions were brought by three different plaintiffs against one defendant, the cause of action in each case being the same, and on appeal to the Court of Appeal, an order was made that only one appeal book should be printed for the three cases, and the three cases were argued together. Held, that the Master was right in allowing separate counsel fees in each case. Petrie v. Guelph Lumber Co., 10 P. R. 600. Where costs were ordered to be paid out of an estate as between solicitor and client : Held, by Mr. Thorn, the taxing officer, that he was not restricted by order 29 of the Court of Appeal Orders (now item 155, Tariff of Costs) to the allowance of a fee not ex- ceeding $80 to counsel for the e- jcutors, and an increased fee was taxed. Archer v. Sever , 3 C. L. Times 602. And see Cameron v. Campbell, 1 P. E. at p. 173. Where a solicitor sues in person he is entitled to tax costs for solicitor's services and disbursements, but if he acts as counsel at the trial he cannot tax a counsel fee in his own cause. Smith d Crooks v. Graham, 2 U. C. Q. P. 268. But a solicitor trustee appearing for himself and his co- trustees in a suit was held entitled to full costs as if he was not a party, except so far as the costs were increased by his being a party. Cradock v. Piper, 1 Mac. & G. 664. Mor. & Wurt. 387, et. sub. DEFENDANTS SEVERING. 37 It was held in a Manitoba case, that in a proper case an appeal from the Master will be allowed upon the quantum of counsel fees. Rankin v. McKenzie, 6 C. L. Times, 502. This is not, however, the practice in Ontario ; and in a recent case the Divisional Court (Q. B. D.) held that the Court will not interfere with the discretion of the taxing officer either as to the quantum or quoties of fees ; and this rule covers any question of distribution or allotment of charges among the diflferent branches of the case. Conmee V. North American Railway Contracting Co., 13 P. E. 433 ; 10 C. L. Times, 117. Where, however, the taxing officer altogether omits to exercise any discretion, or decides on a wrong principle, there an appeal would lie from his decision. l>eteiii!«coiitinuaiice. Immediately on notice of discontinuance the defendant entered judgment for costs to be taxed, following form No. 164 (now form No. 178). On taxation the costs of entering judgment were objci.'ted to. Mr. Clark, taxing officer, ruled that although the defendant under the strict interpretation of the rules was entitled to enter judgment for costs to be taxed, immediately on a receipt of notice of discontinuance, yet that the proper practice was to tax the costs first, and then enter judgment if they were not paid ; and exercising his powers under Kule 442 (now Con. Rule 1214) he disallowed the costs of entering judgment. Oage v. Campbell, 4 C. L. Times, 151. Where defendant paid a sum into Court as part of the plaintiff's claim, and the plaintiff, after issue joined, dis- continued, it was held that he was entitled to his costs up to the time of payment into Court. Suckling v. Gabh, 36 W. K. 175. A plaintiff who discontinues must pay costs of an inter- locutory application in which he succeeded, costs being made costs in the cause. The St. Olaf, 2 P. D. 113. Dociiiwents. Con. Rule 617. Either party may call upon the other party to admit any document, saving all just exceptions. J. A. Rule 241. Con. Rule 1x90. No costs of proving a document shall be allowed unless a notice to admit has been given under Rule 617, except when the omission to give the notice is a saving of expense. Con. Rule 1106. No allowance is to be made for any order for production or any notice of inspection under any of the Rules relating to production and inspection of docu- 42 ENLARGEMENT OF MOTIONS ments unless it is shown to the satisfaction of the taxing officer that there were good and sufficient reasons for taking the order, giving the notice, or making the inspec- tion. J. A. Eule 230. The Evidence Act, R. S. 0. 1887, chapter 61, makes pro- vision for the proof of public documents by certified copies. Sees. 23, 24, 25. As to proof of wills by notice, see sees. 38-41 ; registered instruments, sees. 42-45 ; other written instruments, sec. 46. Before a party will be allowed to tax the costs of obtain- ing an exemplification of a judgment he must serve the other side with a notice to admit. The taxing officer, how- ever, though he cannot allow the costs of exemplification without notice, may allow the costs of procuring a copy of the judgment. Conger v. McKechnie, 1 Ch. Eep. 220. See "Notices." A solicitor concerned for two or more parties is not entitled to charge for supplying to himself copies of docu- ments \.; ich he has prepared. Sharp v. Wright, 1 Eq. 634. A copy of any material document should be provided for each member of the Court of Appeal, and the costs allowed on taxation. Re liondell, 56 L. T. 8. ffinlargenient ot Motions. A counsel fee of $5 for each necessary and proper enlargement of a ccu't motion should be allowed. Mc- €aUum v. McCallum, 11 P. R. 179. A party is not entitled to costs for enlarging the opposite party's motion for his own convenience. Ham v. Lasher, 21 U. C. Q. B. 357. See " Abandoned Motioui." EXAMINiTIONS DE BENE E8SE. 43 Kxaiiiiuatious de bene esse. With respect to the costs of examinations de bene esse, no specific rule appears to have been laid clown which makes any distinction between them and the costs of examinations under ordinary circumstances ; and the costs of such examinations will usually be directed to be costs in the cause. Dan. Chy. Pr. 659. If a witness is so old and infirm that it is a prudent course to take hiss examination, but he is afterwards able to attend the trial, the plaintiff may be allowed the costs of the commission, as well as the costs of the witness attending at the trial. Beaufort v. Ashhurnkam, 13 C. B. N. S. 598. And see Fox v. Toronto and Nijnssinp Railway Co., 7 P. R. at p. 161. The plaintiff sued for damages for bodily injuries sus- tained, and obtained an order for his own examination de bene esse before trial. The order provided that after the conclusion of the plaintiff's examination he should submit to a personal examination by medical men on behalf of the defendants, and that the defendants might afterwards con- tinue their cross-examination of the plaintiff; and that the examination might be given in evidence at the trial " pro- vided the defendants had been able to continue and com- plete their cross-examination of the plaintiff after the said medical examination. " The plaintiff was examined and partly cross-examined under this order, and was examined by a medical man, but his cross-examination, ov.'ing to his ill-health, was not completed. The plaintiff was not ex- amined as a witness at the trial ; the depositions t'tken were offered in evidence, but were rejected as inadmissible under the terms of the order. The plaintiff succeeded in the action. i I i ! 44 EXAMINATION OF I'ARTIES. The Divisional Court held that unrler the circurjstances of the cat e the examination of the plaintiff de bene esse was a propel and reasonable proceeding, and as the failure to complete it was through no fault of the plaintiff' or his solicitor, and as it was not without use to the defendants, the costs of it should have been taxed to the plaintiff as part of the costs of the action. Carti/ v. Citi/ of London, 18 P. E. 285. As to the costs of attendance of medical man on exami- nation, see same case under " Attendances." Examination of Parties. Con. Rule 1177. The costs of every examination of parties or officers of corporations before the trial, or other- wise than at the trial of an action, shall be costs in the cause, but the Court or Judge in adjusting the costs of the action shall at the instance of any party inquire, or cause inquiry to be made, into the propriety of having made such examination ; and if it is the opinion of the Court or Judge,, or the taxing officer, as the case may be, that such examin- ation has been had unreasonably, vexatiously, or at unnecessary length, the costs occasioned by the examination shall be borne in whole or in part by the party in fault. The taxing officer may make such inquiry without any direction. J. A. Rule 220. If H was a propar and reasonable proceeding, and one likely to be of benefit, the costs of examination for discovery nhould not be disallowed merely because it was not used at the trial. Carty v. City of London, 13 P. R. 285; Beaufort V. Ashhnrnham, 13 C. B. N. S. 598. The president <,f the plaintiff's company lived in the United States, but being in Toronto he was there subpa'naed on the 22nd April to attend on the 28th April for examina- EXECUTIONS. 45 tion for discovery before a special examiner at Toronto. He was paid $1 and made no objection as to the amount, nor did he object that he was prevented by engagements from being present on that day, but he failed to atten '. Held, Boyd, C, that the president should have ati udf d on the day appointed for examination, and he was ordere'' to attend for examination at Toronto at his own expense. Georrje T. Smith Co. v. Greey, 22 C. L. Journal 268. There is no provision in the tariff for attendance on examination of parties residing out of the jurisdiction. In one case $20 per diem was taxed to the solicitor for the successful party for attending on a commission to examine witnesses at Chicago. Greey v. Smith, 1 C. L. Times 168. Instructions for Examination. See " Instructions." See remarks of Mr. Jusiice Ferguson as to the abuse of tae practice of examinations for discovery, 21 C. L. O'ournal 66. " The local taxing ofticer refused to tax to a successful plaintiff on a party and party taxation two fees of fifty cents each for attending to bespeak for depositions of plaintiff and defendant after i^'sue joined, upon the ground that the solicitor attending on the examinations should have ordered copies when the examinations were completed without making a special attendance therefor. On appeal, Wilson, C..J., held these foes should have been allowed. Alexander v. School Trustees of Gloucester, 11 P. R. 157. Kxe4»u(Lioiin(. Prior to the Judicature Act the practice had obtained of giving an unsuccessful party, against whom judgment had been entered, time to receive communication from his solicitor advising him of the result of the taxation before issuing executions. The old cases are not always con- Bistent, but it was undoubtedly irregular to take out a 46 EXPERTS. fi. fa. the instant costs were taxed without allowing a reasonable time for the solicitor of the client who had ta pay to communicate with his client. Cullen v. Cullen, 2 Chy. Ch. . Instructions will not be taxed for the ordinary pra-cipe order to produce documents. Ih. Where the defendant appears to a specially endorsed writ of summons, and judgment is signed under Con. Rule 7:39, the plaintiff is entitled to $4 for instructions to sue. II). Where instructions are allowed for a motion in Chambers not less than $1.00 should be taxed. lb. Instructions for affidavit on production of documents in ordinary cases $1.00. lb. 62 IRREGULARITIES —JUDGMENTS. The English practice provides for a further allowance for instructions to sue or defend, and for briefs, if the taxing officer shall on special grounds consider the fee in the tarifif inadequate. There is no such provision in the Con. Rules, or the Ontario Judicature Act. See Order LXV. 27 (3). Irregularities. Where an irregularity is not moved against promptly no costs will be allowed. Stevenson v. Hodder, 15 Gr. 542 ; Harringto.. v. Full, 15 U. C. C. P. 541. Where defendant's solicitor was served with a short notice of motion, which was admitted to be defective : — Held, that he was not entitled to the costs of counsel attending on the motion merely to show that the motion was irregular. Waller v. Claris, 11 P. R. 130. Jii4i{7 intents. In an action against two defendants for the price of a machine the plaintiffs signed judgment for default of appearance against the defendant Richards for the whole amount claimed against both defendants, but did not at the time tax costs against him. The defendant Garrett defended the action, but judgment was finally entered against him, also for the full amount claimed with costs, but no special direction was given as to the taxation of costs against the two defendants. On an application for a direction as to the ta.Kation of costs the Master in Chambers ordered " that the whole costs of action be taxed against the defendant Garrett, including the costs of entering judgment by default against the defendant Richards ; costs up to and including such judgment to be also taxed against the defendant Richards, JURY FEE — LETTERS. 53 and if recovered from either party to be credited on the judgment against both." Wilkinsoii Plough Co. v. Garrett, 7 C. L. Times 22. Where the Judge directed reasons for judgment in the plaintiff's favour to be put in, the plaintiff's charges for drawing, settling, engrossing, &c., such reasons were held proper. Alexander v. School Trustees of Gloucester, 11 P. R. 157. There is no necessity for a notice of settling, or of attending to settle a judgment, which simply dismisses the action. Eep. I. L. 0. 1887. Attending to hear judgment, attending to enter judg- ment. See ante under " Attendances." Judgment on discontinuance. See ante " Discontin- uance." Jury Fee. ' The defendant gave notice for a jury and paid the jury fee. A vordict was found in his favour, but a new trial was directed. The plaintiff gave notice of trial again, but the prothonotary refused to enter the record until a further jury fee was paid. The plaintiff then moved to strike out the jury notice, and after argument such an order was made by Bain, J., but upon appeal to the full Court Ihe order was set aside upon the ground that a second payment could not have been exacted. Elliott v. Wilson, 8 C. L. Times 451 ; 9 C. L. Times 71 ; 6 Man. L. R. 63. See " Record." liCtters. A practice obtained of disallowing all agency letters where both principal and agent resided in the same county. In this action it was decided that all necessary letters 54 MAPS AND PLANS. between a solicitor and his agent on the business of the cause are taxable as between party and party, whether the agent resides in the county town of the county where the solicitor resides, or in another county, or in Toronto. Agneiv v. Plunkett, 9 P. R. 456. Mr. Winchester, Inspector of Legal Offices, in his report for 1885, states that the following letters had been dis- allowed in some bills of costs where they should have been allowed. Letters to client (1) advising of trial ; (2j result of case where judgment reserved ; (3) motion to change venue ; (4) result of a^ ^ication to Divisional Court. Letter to ageuts with papers to file and serve. Letter from agents advising papers served. Letter from solicitor returning admission of service of papers sent by opposite party. Letters written by a solicitor, before the writ is issued, demanding payment of a debt or other demand, are not chargeable against the debtor. See " Costs before Writ Issued." IVIapH and l*laiis. The taxing officers are authorized to make a reasonable allowance for maps and plans where they are used at the trial. The necessity for them must be shown by affidavit- Con. Rule 1213. But expenses incurred for surveys and other special work of that nature, made in order to qualify witnesses to give evidence are not taxable between party and party, the English Chancery Order 120 (1845) not being in force here. Preliminary expenses for qualifying witnesses are matters that the Judge or jury may consider in awarding damages and the like, but so far as the taxing officer is concerned, it MOTIONS. 55 18 not in his pow r under tin present tariff and practice to allow them to the successful party. McGannon v. Clarke, 9 P. R. 555. The difference between the English and Ontario tariffs of <508t8 in this respect is clearly pointed out by the Chancellor in the above case. :!ii| Motions. It is now u settled rule that the party moving may be :granted the costs of the motion, though they are not asked for in the notice of motion. Mor. & Wurt. 46 ; Ontario Bank v. Leacock, 6 C. L. Times 855 ; Sander* v. Christie, 1 Gr. 137 ; In re Peck and The Corporation of the Town of Gait, 46 U. C. Q. B. 211. Generally the costs of a successful party on interlocutory Applications will be costs in the cause without express directions. Hind v. Whitmore, 2 K. & J. 458 ; Harris v. Hillard, 20 L. T. 216. Where a motion by the plaintiff was ordered to stand till the hearing, no order being made as to costs, and the plaintiff ultimately obtained a decree with costs, but the ■costs of the motion were not mentioned in the decree, it was hold that the motion was substantially a .successful one, and that the costs of it were costs in the cause. Movnsey v. Eaii of Lonsdale, 10 Eq. 557 ; 6 Ch, 141 ; and flee Mor. & Wurt. 48. But see " Abortive Proceedings." Where a motion is made in Chambers and argued as a "Chamber Motion the Judge has no power to issue the order as a court order, so as to tax the costs of a court motion. Re Flemming, 11 P. R. 272. Three interlocutory motions were made during the pro- gress of the action, and the orders made thereon gave the 66 MOTIONS. plaintiff costs of the motioi s " in any event of the action." The plaintiff succeeded, but was only awarded costs on th» county court scale. Held, that the costs of these motions should be taxed on the county court scale, as well as the general costs of tlie action. Bhikc v. 'J'orontr> Breiririfi and Malting Co., 8 C. L. Times 123. Where a motion is treated as abandoned, and the opposite party intends to ask for the costs of an abandoned motion, he ought before doing so to communicate his intention to the party by whom the motion was made. Aitken v. Dunbar, 25 W. R. 866; Grifen v. Allen, 11 Ch. D. 913. The costs of all work relating to affidavits or pleadings reasonably and properly and not prematurely done, down to the time of an abandoned motion or discontinuance of an action should be allowed on taxation. Harrison v. Leutncr, 16 Ch. D. 559. And see Dan. Chy. Pr. 1557, 1561. The costs of a successful motion to commit any person for contempt are payable by such person. Pennel v. Hoy, 1 W. R. 271. But where the object of the motion is to obtain an apology and piryment of costs rather than a committal, the Court is inclined not to grant costs. Plating Go. v. Far- qnharson, 17 Ch. D. 49. Where costs are reserved until the trial or further order they should, it seems, be mentioned to the Court and provided for by the judgment or subsequent order ; where, however, an action is dismissed with costs this includes all costs reserved. Mor. & Wurt. 50. Where the motion is occasioned by the default of the party moving he must pay the costs ; or where the party moving is asking an indulgence from the Court. lb. 61, 54^ MOTIONS. 57 Where the defendant's soHcitor was served with a short notice of motion, which was admitted to be defective : — Held, Wilson, C.J., that the defendant was not entitled to the costs of counsel attending merely to show that the notice was irregular. Waller v. Claris, 11 P. R. 180. A motion for attachment when made for non-compliance with the rules of practice or with orders of course, should be made in Chambers ; but when made for non-compliance with a judgment of the Court, should be made in Court. Klein v. The Union Fire Insurance Co., 3 C. L. Times 602. Where a motion is made in Court that could be made in Chambers, the party moving will be allowed no costs, other than those of a Chamber Motion. King v. Connor, 10 Gr. 364. A person of the same name as the defendant was served,, by mistake, with a copy of the writ. A motion was made for judgment under Rule 324 (now Con. Rule 744). The person served appeared on the motion and asked for costs. OsLEu, J., " As to costs, I think the person served is entitled to his costs of coming here to oppose the motion. He did not appear merely to ask for his costs, but quia timet an order would be made against him. See J^ie Great Northern Committee v. Trett, L. R. 2 Q. B. D. 284, and Campbell v. Holyland, L. R. 7 Ch. D. at p. 175." Lucas v. Frascr, 9 P. R. 319. A counsel fee of $10 was allowed on a motion for security for costs. Bell v. Landon, 9 P. R. 100. Upon an interlocutory application the defendant refiled material used by him upon a previous application which he had made and which had been refused without costs. An order was granted upon the new application with costs. Upon taxation the Master allowed the costs of preparing the old material ; but upon appeal, 68 NEW TRIAL — NOTICES. Held, that such costs were 'mproperly allowed. Hooper y. Bushell, 5 Man. L. R. 300; 8 C. L. Times, 261. New Trial. Where a new trial was occasioned by a misunderstanding between the counsel for the respective parties as to the terms on which a verdict had been taken, a new trial was granted without costs. McLcod v. Boultun, 2 U. C. Q. B. 44. See Con. Rule 79+ and Holraested & Langton's notes thereto. SToticefi. Con. Rule 617. Either party may call upon the other party to admit any document, saving all just exceptions. J. A. Rule 241. A notice to admit or produce documents is available at any trial of the cause, and not merely at the first trial after the giving of the notice. If given the second time they would, probably, be disallowed as being uunecesaary. .Wikon v. Baird, 19 U. C. C. P. 98. Notice to admit should bo given even though the opposite side assert that the document is a forgery, ^■ipencer v. Barrafih, 9 M. & W. 425. A party to a cause, proposing to adduce in evidence at the trial any written or printed document, ought to serve a notice to admit the same, although the document is not in his possession, or even in a place inaccessible to him ; and in the event of his neglecting to do so, he will not be allowed the costs of proving it. Riitter v. Chapman, 8 M. & W. 388. A mortgage provided that on default for three months the mortgagees might sell without notice. There being ORDERS. 59 default for more than three months the mortgagees -exercised the power of sale and serve:! notices of sale. Street, J., held that the mortgagees had the right to pro- ceed after three months' default to sell with notice if they 80 desired, notwithstanding there was power to sell without notice, and that they were entitled to tax the costs of the notices. 2" re Young and London and Ontario Investment Co., 10 C. L. Times 189. There is no necessity for a notice of settling a judgment which simply dismisses the action. Rep. 1. L. 0. 1887. Where a statute requires notice to he given before bring- ing an action, there the notice is really the first step in the action, and can be taxed between party and party. Pringle v. McDonald, 7 P. R. 152. Where a railway company was entitled to notice of action, the plaintiffs were allowed the costs of the notice as a part of the costs of the action. Kent v. Great Western Railway Co., 4 D. & L. 481 ; 16 L. J. C. P. 72 ; see also Edwards v. Great Western Railway Co., 12 C. B. 419. But where a conveyance of land was set aside as being fraudulent, the costs of preparing and tendering a recon- veyan ;e for execution before the service of the bill, were held not tpxable against the defendant, as they were not necessary prelimiupr'es to the suit. Pringle v. McDonald, supra. Ori'iers. Evidence cannot be received by a taxing officer to make cofts payable otherwise than they appear to be by the •ore er awarding them when explained by the ordinary rules of construction. Keim v. Yeaglry, G P. R. 60. The Master in Chambers made an order to amend the writ and proceedings, the costs to be costs in the cause. ^r , ()0 ORDERS. The plaintiff having succeeded in the action, claimed the costs of the amendment allowed b}' the order in taxing hia costs of suit, which the taxing officer refused to allow, ruling that he could under liule 442 (now Con. Kule 1214)» exercise his discretion to disallow costs which he thought were improperly incurred. Held, FERGtTsoN, J., that the taxing officer had na discretion, but was obliged to tax the costs as ordered, and that Rule 442 refe-s to the moderation of costs not dis- posed of l»y express ordnr or judgment. Edwards v. Pearson, 3 C. L. Times 504 ; 20 C. L. Journal 93. See Dominion, etc., v. Stinson, 9 P. li. 177, under " Com- mission to take Eyi 'ence." Prfscipe orders are orders of the Court, and a fee of $1 should b^ aliowed thereon, under item 116 of the tariff. Gafie V. Canada Publishing Co., 3 C. L. Times 267 ; lO' C. L. Jour.ial 175. Wiiere a motion is made in Chambers, and argued as a Chamber Motion, the Judge has no po.ver to make the order as a court order, so as to tax the costs of a court motion. Pe Meminfi, 11 P. K. 272. Only one attendance should be allowed for obtaining a pnecipe o"der. Latonr v. Smith, 13 P. 11. 214. See the remarks of Boyd, C, in Snider v. Orr, et al., 11 P. R. 140, as to the uimecessary multiplication of orders in. respcL't of the sanje matter. Costs of an affidavit filed but not read in the order will be disallowed even on a taxation as between solicitor and client. Stevens v. Lord Nen-hor()U'igB were disallowed on both sides as being unnecessarily pleaded. And in The Catuuhi Pi-rmanent linild'vui .otil S'ge Con. Eule 681 and the cases cited in Holmested & Langton's notes thereto. Record. V/here the trial of a case is postponed from one Assize to another by the order of the Judge at the Assizes, the Clerk of Assize has no right to levy the fee for certifying the record and the entry and jury fees over again, the former payment holding good. In this case an order had been made by the Mast or in Ohambers on application to postpone the trial wli'n the trial was coming on for the second time, that the case should be entered at the foot of the list in order that the plaintiff might be examined, but it was held, by Wilson, C.J., that this did not necessitate a re-entry of the case, and that the case once entered remained entered on the list until it .vas tried, struck out or withdrawn Morton v. Grand Trunk Hailtcay Co., 19 C. L. Journal, 372. See " Jur/ Fee." Kef«>ren««N. Con. Kile f?). Where, at any time during the prosecu- tion -vf a refer*?ice, it appears to the Master, with respect to the wV)le or any portion of the procoedings, that the interests of the parties can be clasBified, he may require the parties constituting each oi any class, to be represented by the same boHoitor ; and where the parties, constituting REFRESHERS. 65 8uch class, cannot agree upon the solicitor to represent them, the Master maj' nominate such solicitor for the pur- pose of the proceedings hefore him. Chj'. 0. 218, first part. Con. Eule 1188. When two or more actions or proceed- ings are instituted for administration, or partition, or sale, the Judge may, in his discretion, disallow all or any of the cohts of any action or proceeding wliich in his opinion has been unnecessarily prosecuted ; where any one of the paities, constituting a class formed by a Master for repre- sentation in his office by one solicitor, insists on being represented by a different solicitor, sufh party is personally to pay the costs of his own solicitor of and relating to the proceedings before the Master, with respect to whiv^h Huoh nomination has been made, and all such furtluu' oosts as are occa*ioned to any of the parties by his bolng repre- sented by a different solicitor from the solicitor so nominated. Chy. 0. 218 and 644. Wharton's Law-Lexicon defines a refresher as "A further or additional fee to counsel in a long case, which may be, but is not necessarily, allowed on taxation." Laurie v. Wihon, L. R. 10 C. P. 152. Whiteway, p. 154, " In the Common Law Division the practice as to refresherH is not quite the same as in Chancery. On both sidis in iictions with witneHsei refreshers arc allowed in the case of actions which have taken up more than one entire day for each day after- wartls ; but where the action is tried on affidavit no refreshers are allowed. The amount is in the discretion of the Master, and depends upon the fee originally marked on the brief and the nature of the case. The true rule if stated by Jesscl, M.li, in Brown v. Seivell, 16 Ch. D. 620. W.T.C. — 5 66 RETAINING FEE. When a case, the brief of which was delivered in one term, is not reached until another, a refresher is generally allowed. " The meaning put upon this phrase ('the costs of the day ') includes only a single counsel fee of $10, named a refresher, a term which would seem more appropriate if the case were adjourned for a day or so at the one assize, than to a case where the postponement is until another assize." — Proudfoot, J., Horifi v. Crabhe, 12 P. R. 14. Refreshers to counsel are allowable only where the case is so circumstanced as that it may be called on, and are therefore not allowable when a cause has been ordered to stand over to await the decision of a Court of Error in another cause involving the same question, and therefore cannot by possibility come on. Ilwjhes v. Birkenhe^fJ, Improvement Ccmimissioners, 16 L. T., N. 8. 850, Q. B. As to the allowance of refreshers on an argument in the Court of Appeal see Swensden v. Wcdiaee, 16 Q. B. D. 27 ; Eatton V. London Joint Stock Bank, 38 Ch. D. 26. Hc'taliiliim: Fee. A retaining fee to counsel will not be allowed on taxation as between party and party. Green v. Ihujiis, 7 Hnre, 279 ; Smith v. Earl of E^ngham, 10 Beav. 378 ; Cidlcn v. CuUm, 2 Chy. Ch. 94. " No retaining fee will be allowed, on a solicitor and client taxation, to a solicitor who is himself also counsel. In England there is no such thing as a retaining fee to a solicitor. It is a fee paid to counsel only, and it is paid to secure his sorvices either in a particular suit, or generally for any suit the client may be interested in. I do not think the argument that the solicitor being in this country both Bolicitor and counsel, the retaining foe is chargeable as if paid by the solicitor to retain his own services as counsel, RETAINIKa FEE. 67 a sound one. If employed as a solicitor it is hia duty to devote himself to further the interests of his client, and he certainly could not consistently with that duty hold a brief as counsel for the other side, so his services, if he intends acting as counsel, are already secured." In re McBride, Farley v. Davis, 2 Chy. Ch. 153. If a retaining fee is actually paid it could not be recovered back by the client, but an unpai<' retainer fee cannot be taxed by a solicitor against his client. Re Oeddes d Wilson, Solicitors, 2 Chy. Ch. 447. A retaining fee was paid by executors to a solicitor in an administration suit, and under the circumstances of the case, was held to be a reasonable disbursement, and allowed them in their acconnta. Cliishohn v. Barnard, 10 Gr. 479. A solicitor acted for a client in defending him on a fharge of arson, and in prosecuting actions against two insurance companies to recover for a loss by lire. At tlie time the solicitor's services were required the client had no money and had no prospect of getting auy, and in conse- quence of M/f rif'lf t))/' tuiUf'^nr ran of getting iirjfliing and losing a considerable sura for disbursements, the client offered him a retaining fee, to be paid out of the insurance moneys when recovered, and it was agreed between them that such fee should bo $150 for the two actions, the amount claimed being about $1250. Subsequently, and when some costs had been incurred, the client made an assignment to a third party of the moneys due to him from the insurance companies, ia trust to pay the solicitor his costs, including the retaining fees agreed Ujppn, and to pay the balance to creditors. Held, Falconbridge, J,, that the assignment in trust was a security for costs already incurred, a confirmation of the original agreement, and a quasi appropriation of the money; I 68 REVISION OP TAXATION. and as it appeared that the client understood that the pay- ment of retaining fees was vohintary, and that they could not be recovered from the opposite party, the retaining fees were properly allowed to the solicitor by the taxing officer; and under the exceptionable circumstances of the case the amount was not unreasonable. Re J. S. Eraser, a Solicitor, 13 P. R. 409. The fact that retaining fees had been charged against a client were looked upoii as a "special circumstance" to justify a taxation in Toronto instead of the county town where the solicitor resided. Re George A. Skinner, a Solicitor, 13 P. E. 276 ; 25 C. L. Journal, 623. ]t«vlsloii of Ta:Katloii. The taxing officers on revision of bills of costs have power not only to strike out items improperly allowed, but also to restore items improperly struck out, anrl generally to revise the taxation. But the taxing officer cannot receive evidence to make costs payable otherwise than they appear to be by the order awarding costs when explained by the ordinary rules of construction. Keim v. Yegley, 6 P. R. 60. The taxing officers have power to call for evidence on taxations before them. Where the plaintiff was out of the jurisdiction, and a taxing officer had refused to proceed with the taxation of her costs of the action against the defendants until she was produced before him for examination, touching her retainer of the solicitor in whose name the proceedings in the action had been conducted, it was directed that the officer should first examine other witnesses, and then if unable to decide the question of retainer should report to a Judge in Chambers. Williamson v. Town of Aylmer, 12 P. R. 129. SALK. 69 Sale. Sometimes a fix ^ sum for the entire sale, or for each lot sold or bought in, is arranged to bo paid to the auctioneer for his remuneration ; and sometimes he is allowed a commissi n on each lot sold, and a fixed sum for each lot not sold. The amount in either case depends upon the magnitude of the saL the ability and position of the auctioneer, the trouble he has had, or is likely to have, in the business, and whether he is to pay any and what expenses attending the sale, to make any survey with a view to lotting tlie property, or any valuation preparatory to fixing the reserved bidding. The terms should be fixed by the chief clerk before the proposed auctioneer is appointed to sell. Dan. Chy. Pr. 1079. Ee Page, 9 Jur. N. S. IIIG. Where the Master sells instead of an auctioneer he is entitled to charge $1.5i) per hour, or if he travels more than two miles from hia office $2 per hour, and 20 cents per mile travelled. Rep. I. L. 0. 18;i!;). Where a sale under the judgment of the Court is put off the expense and delay of a new advertisement should not be incurred, but a note at the foot of the old advertise- ment stating the postj-ionement should suffice. This, being less expensive, the increased costs of a new adver- tisement would be disallowed. Thompson v. Millikcn, 15 Gr. 197. See In re Richardson, 3 Chy. Ch. 144, where the prac- tice is defined as to the manner in which a solicitor's costs for professional services rendered in the sale of lands and collection and transmission of the purchase money, will be taxed. Instalments of purchase money (not the deposits on sale) were paid by the purchasers to the solicitors for the plaintiff, and by him paid into Court. IMAGE EVALUATION TEST TARGET (A^T-S) & <' 2-! 1.0 l.i £: lu 112.0 '•25 11111.4 6" 1.6 i V] <^ /^ % VI A^^^^^ ^^^5^"^ ^> ^JW /; *'% /2 Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. I4S80 (716) 873-4S03 ^"^ &?- c^. C/j I I i ^1 if)'; U'i; 'I 70 SERVICE OP PAPER AND PROCESS. Held, that be was not entitled to any remuneration from the estate for such services, it being the duty of the purchaser to pay thece moneys into Court. Re Robertson, Robertson v. Robertson, 24 Gr. 555. It is the duty of the vendor's solicitor on a sale by the Court to compare the conveyances tendered by the pur- chasers, and for so doing he is antitled to tax the necessary and reasonable coats thereof. In re Robertson, Robertson V, Robertson, supra. fierTlee nV Paper and Pr<>«;esii. Con. Rule 254. Upon the delivery of a writ of sumracns at the office of a sheriff, to be served by him, he, his deputy or clerk, shall endorse thereon the time when it was so delivered ; t.nd in case the writ is not fully and complete! v served within ten days after such delivery, the plaintiff, h's solicitor or agent, shall be entitled to receive back the same : and the sheriff, deputy sheriff or clerk, shall endorse thereon the time f the delivery; and the costs of the mileage and service of the writ by any literate person afterwards, shulli in case the person to be served \ias at any time during such ten days within the county, be allowed in the taxation of costs, as if the service had been by the sheriff or his officer. R. S. 0. 1877, chap. 50, sec. 23 ; chap. 40, sec. 95. Con. Rule 1212. No mileage shall be taxed or allowed for the service of any writ, paper or proceeding, without an affidavit being made and produced to the proper taxing ouic'ur, stating the sum actually disbursed and paid for such mileage, and the name of the party to whom such payment has been made ; and, except in cases provided for in Rule 254, no fees shall be allowed for the mileage or service of writs of summons unless served and sworn in the affidavit of service to have been served by the sheriff, his deputy cr bailiff, being a literate person (or by a coroner when the SERVICE OF PAPER AND PROCESS. 71 of vit or le sheriff is a paf ty to the action j, nor unless a return of the sheriff or coroner (as the caso may be) is endorsed thereon. R. S. 0. 1877, chap. 50, sec. 335 ; Rule T. T. 1866, 160. No fees can be taxed on a party and party taxation for sefvice of subpoenas or mileage, if the service is not made by the sheriff, his deputy or bailiff. McLean v. Evans, JJ P. R. 154 : Ham v. Lasher, 24 U. C. Q. B. 857. McLean v. Evans was decided on the ground that a subpoena was a m^sne process, and the charges for service were disallowed under section 277 of the Common Law Procedure Act, which read as follows : — " In the taxation of costs no fees shall be allowed for the mileage or service of writs of summons or other tnesne process unless served by the sheriff or his deputy or bailiff," etc. This soction is now represented by Con. Rule 1212 which omits the words " or other mesne process." In a recent case that came before the full Court it was contended that because of the omission of these words the service of subpoenas were taxable to the solicitor. Held, Armour, C.J., clabitante, having regard to Con. Rules 254, 1212, 1217, and items 16 and 17 of the Tariff, that the successful party was not entitled to tax anything for costs of service by his solicitor of writs of subpoena. Carty v. City of London, 18 P. R. 285. A person of the same name as the defendant, served by mistake with the writ in the action, was held entitled to his costs of opposing a motion for judgment under Rule 824 0. J. A. (now Con. Rule 744). Lucas v. Eraser, 9 P. R. 319. In lieiv V. Anthony, 9 P. R. 545, costs were allowed for serving an infant defendant out of the jurisdiction. This is not now necessary, as Con. Rule 258, making service on the Official Guardian sufficient, would seem to apply to infant defendants residing out of the jurisdiction. 72 SIMILITER. — SOLICITOR AND CLIENT C0BT8. Similiter. The costs of a similiter with a jury notice were holcT properly disallowed. Alexander v. School Tnistecu of Gloucester, 11 P. E. 157. Siolieltor aii' rnoh'ij, 40 Ch. D. 1. W|»€H*ial Jury. The costs of a special jury are paid, in the first instance, by the party suing out the writ of renirc facias juratores. R. S. 0. 1887, chap. 52 sec. 111). 'I'he party suing out the renire facias cannot tax the costs of the special jury unless the trial judge certifies in open Court innuediately after the verdict, or afterwards in Cham- bers, that the case was a proper one to be tried by a special jury. Sec. 127. w.T.t:.— 6 m STOP-ORDER. ll Wh'ire a special jury is sutnraoned, but the cause is not heard, is provided for by sec. 128. The Clerk of the Peace is not entitled to anv i^e from the parties to a cause for striking a special jury. Hooker v. Gurnett, 16 U. C. Q. B. 180. The costs of a special jury are not costs of the day, but part of the general costs of the cause. Whitehead v. Brown, 2 0. S. 345. In Farqnhar v. Robei'|Mi*iia. Con. Rule 561. Any number of names may be included in one subpoena, and no more than one subpoena shall be allowed on taxation of costs, unless a sufficient reason be established to the satisfaction of the litxiug oflicer for issuing moro than one. Rules T. T. 185G, 163. In an ar ' .atiou under the Railway Act there was no power to compel the attendance of witnesses. Su'^poenas, however, were issued, and the parties attended upon them and were examined. Held, there was no power to tax the subpoenas as such, but as they operated as notices, the proper costs of notices should be allowed, and also the costs of the attendance of the witnesses. Re McRae and The Ontario and Quebec Raihvay Co., 12 P. h. 282 ; affirmed, p. 327. As to service of copies of pubpojna, see Carty v. London, under '* Service." Taxation of Costs. Con. Rule 197. All taxing officers shall, for the purpose of any taxation, have power to administer oaths and take evidence, direct production of books and documents, make certificates, and give general directions for the conduct of taxations before him. See J. A. Rule 438. Con. Rule 1201. The taxing officer shall have authority to arrange and direct vrhat parties are to attend bef( re him ^f? i^ ill 18!! ■H!!! Ill \i 84 TELEGRAMS. on tho taxation of costs to l)e borne by a fuii^. 35 W. R. r,4fi. A blaster or a single Judge has no discretion to allow a solicitor more than $1.00 per hour for attendance on \he taxation of a bill of costs, (^ither between solicitor and client, or party and party ; the tariff being hx"d at that rate by G. 0. 608 (now item 99 of the Tarilf). lie TotUrn, 8 P. K. 885 ; 17 C. L. Journal 49. And a bargain between a solicitor and his client for $2.00 an hour would noi be binding, lie (ieddi's (('• Wihon, S<'H- citors, 2 Ciiy. Ch. 447. But see Oowjh v. I'oti/, 1 Chy. Ch. 207. Where si'parato affidavits were made when only one necessary, see lioulton v. MrXniKihton, 1 Chy, Ch. 216, under " Affidavits." The claimant having succiieded in the trial of an inter- pleader issue, moved for a final order barring the execution creditors, and served notice of the motion upon the sheriff. It was unnecessary to serve the sheriff. The claimant was ordered to pay the sheriff's costs of the motion without recourse over to the execution crcilitors. O'Brien v. Bull, 19 C. L. Journal, 211. Where the guardian ad litem of an infant defendant had made no objection to the unnecessary proceedings, no costs wer(! given either to the executors or the guardian, of such proceedings. Springer v. Clark, 15 Gr. <)64. In an administration suit the plaintitis, who were next of kin, had incurred the expense of several journeys to examine the books of the estate and make inquiries, etc. ; and also of other proceedings in the Master's office without the consent of the creditors who were alone beneficially interested, and after they knew that the estate was insolvent ; such costs were disallowed. He Robertson, Robertson v. Robertson, !i!4 xlr. 555. : i i ^ 1 t i i VK8TINO ORDER — VOUCHERS. 91 Where a defendant appealed from a Master's report, where the matter might have been disposed of on an appli- cation before a Judge iu Chambers, no costs were given. Fauchier (& Son v. St. Louis, 13 P. R. 318. Sec "Affidavits," "Attendances," "Witnesses and Witness Fees.' Vesting^ Order. Although a purchaser, at a sale under judgment or order of the Court, must prepare the conveyance and tender it for execution, if he does this, and the parties entitled refuse t.o execute the conveyance and he is compelled to apply for i vesting order, he is entitled to the costs of the motion for the vesting order. Lawrason v. Buvkley, 3 Chy. Ch, 270; Re McMorris, 3 Chy. Ch. 430. V«»ii€*li€*rM. All vouchers or affidavits produced on taxation for the purpose of proving disbursements should be tiled with tlje papers in the cause. Disbursements should not be taxed for which there are not proper vouchers or evidence of payment. Wilson v. Moulds, 4 P. H. 101. On proving accounts in the Master's office the vouchers are not tiled, but simply initialed by the Master and returned. The Master is not, therefore, entitled to any charge for filing. Rep. I. L. 0. 1885. Con. Rule 561. Any number of names may be included in one subpoena, and no more than one subpoena shall be allowed on taxation of costs, unless a sufficient reason be established to the satisfaction of the taxing officer for issuing more than one. Rules T. T. 1856, 163. 92 VVlirKSSES AND WITNESS FKKS. m As to service of subpfinas, see " Service of Papers and Process." See also Com. Paile 1212. Con. Rule 1218. All affidavits of increase must be made by tbe solicitor in tbe cause, or some clerk liavinr;f tlie manaj^ement tliereof, or by tbe client. Tbey must set fortb the sums paid to counsel, 'laminj^' tliem, and for what ser- vice, tbe names of witnesses, their places of abode, the place at which the.y were subpcenaed. and the distance which each such witness was necessaril}' obliged to travel in order to attend the trial, that every such witness was necessary and material for the cliBut in the cause, that they did attend, and that they did not attend as witnesses in any other cause (or otherwise, as the case may be). The number of days which each witness was necessarily absent from home in order to attend such trial must be accurately stated. If a solicitor attends as a witness it must be stated whether or not he attended at the place of trial as solicitor or witness in any other cause, and whether or not he had any other business there. The day on which the trial occurred should l»e stated. If maps or plans were used at the trial, tht- necessity for theiU must be shewn in the affidavit, or no allowance will be made for them ; the sum paid for them must also be set forth, and that they were prepared or procured with a view to the trial of the cause. The taxing officer is authorized in such case to make a reasonable allowance for maps and plans, llules T. T. 1850, 105. 1{. S. (). 1887, chap. (U, sec. 50. " It shall not be neces- sary to prove by the attesting witness any instrument to the validity of which attestation is not requisite, and such instrument may be proved by admission or otherwise, as if there had been no attesting witness thereto." As to proof of wills by notice, see section 38. As to expenses incurred in proving documents, see " Documents." 'lii' !„■ Bi r '!: VITNKSS FEES PAID BEFORE TAXATION. 98 As ti) expenses of witnesses sworn or subpien.aed by the Crown, see R. S. O. 18H7, chap. 87. WitiioMM F«'('M iiiiiMt Uv |Miic actually paid before an affidavit of increase is made ; and if the practice is not followed in this respect th( Court will order the sums sworn to have been paid and allowed by the Master to be refunded. Tnnt v. JlnrnHn,,, 2 1». \- L. 041 ; !> Jur. 873. An al'lidavit of increase out,dit nrd to state ihaL the exi)enses char«j;ed for witnesses have been paid to them, unless they have been actually paid at the time when it is made ; the fact of money due to a witness for his atten- dance havinc; been set-otf against expenses incurred by the successful party in conveying him to tin; assize town, and keeping him there is insufHcient. CV^ss v. Pnrill. *] .Jur. N. 8. 088; 8 W. W. 030. An affidavit of increase stated that the dei)onent had paid a certain sum as witness fees to one Creighton. The alleged payment was made after the trial but before swear- ing to the atiidavit, and was in fact not an actual haiiding over of cash, but a setting-olf, with the consent of the wit- ness, a sum due by him to the defendant. Armour, C.J., held that the consent made the transac- tion quite different from a mere set-otf, and that it was payment of the witness fees, fn re Solicitors, i). C. L. Times 35. _.^ .^ ^ I I P:, 1 *, ? 94 WITNESS 8UBP(ENAED BUT NOT 8W0KN. In a case of Sulois v. W(dker, decided by Rouleau, J. (North West Territories) reported 9 C. L. Times 886, it was held that an affidavit of increase stating that th'i plaintifT " was indebted to each of said witnesses fcr his loss of time," etc., was suflScient. This decision is not in accordance with the English and Ontario cases, and would not be followed here. Where a witness is subpoenaed and paid by both parties to the action, the rule is that the successful party is entitled to tax the costs of the witness against the other party. McLean v. Evans, 3 P. R. 154. IVitneMM Miibp«pnae€l but not sif'oni. Wilson, J., " The rule has always been as stated in Arch. Pr. 11th Ed. 512. 'The Master will allow the expenses of all necessary witnesses, and this although they were not called at the trial. So although the evidence of particular witnesses be not in strictness admissible, yet if there was reasonable ground for believing it to be admissible, the Master will allow the expenses of them, even although they were not examined at the trial. But the Master will not allow the expenses of witnesses whose testimony is clearly inadmissible, or whose testimony would not have supported any issue in the cause.' The Master is the judge of the materiality of witnesses, subject to the review of the Court; but he is generally the sole judge of the number of wit- nesses to be allowed in support of the same matter." The Master allowed fees to seventy witnesses subpoenaed but not called, on charges of bribery by the petitioner, the election having been avoiaed on the evidence of other witnesses. Held, that the Master exercised a proper discretion, even though the respondenf.'s attorney swore he believed the 15" t i WITNKSa 8UBIMUNABD BUT NOT SWORN. 96 witnesses would have disproved the charges they were called to prove. Re Prescott Election Case, 32 U. C. Q. B. »03. Where two witnesses were subpoenaed for the defendant but not examined at the trial, Macaulay, J., held that in the absence of anything to show them not material or not bona fide in attendance as witnesses in the cause, it was in the discretion of the Master, if satisfied they did so attend and were paid, to allow the charge. Boulton v. Switzer, i Ch. Rep. 83. And see Morrison v. Hurmer, 5 Scott, 410. Even where a witness is rejected by the Judge, it would seem that the taxing officer should decide whether such witnesb was necessary or not, and allow or refuse big expenses accordingly. McLean v. Evans, 3 P. R. 164. But where a witness is rejected at 7iisi prius, and the ruling of the Judge is acquiesced in by the parties and up- held by the Court, the exnonses of his attendance are not allowed on taxation between party and party. Gallou-ay v. Key worth, 2 C. L. R. 860 ; 15 C. B. 228. In an action on a promissory note the defendant having pleaded fraud, the plaintiff brought up a witness to dig- prove the fraud, but the defendant failing to make out a prima facie case of fraud the witness was not called. Held, that the plaintiff was entitled to the costs of such witness. Miller v. Thomson, 4 M & G. 260. If, by an alteration in the state of the pleadings after notice of trial, certain witnesses are unnecessary, the party who subpoenaed them must make reasonable efforts to prevent their attendances, or their expenses will not be allowed. Allport v. Baldwin, 2 D. P. C. 599. The costs of witnesses whose attendance becomes useless, owing to an admission being made '>y the opposite party A J)6 WITNKSb SUUHKNAEIJ JU'T NOT SWORN. U i) H" of tlie matter wliich they we'"e snmraoneil to prove, are in the discvclion of tin; taxing officer. D'iri:i v. Thomaa, 6 Jnr. N. S. 70!K But a party is not bound to rely on the admissicne of th'i oi)[)osite party made on liis examination for discovery, and the costs of procuring tlit^ attendance of a '^'itncss to prove what was tlien aihnitted was allowed on appeal from the local taxinjj; ofiicer. Alexamler v. I^chool 'J'nisttt's of (noaa'strr, 1 1 P. ]\. 157. Where the plaintiff gave notice that lie intended to raise a point on the question of value, which he wa;^, at the trial, ])reclu(lo(l hy the defendant from going into, and the f a writ of summons by tendering the amount sued for before service but after the issue of the writ. O'Malley v. Killmallack, 22 L. R. Ir. 326. Service of writs by solicitor. See " Service." Unnecessary writs. See Gu&et v. Younq, W. N. (1883) 216. -■■ f, -, . 108 COSTS IN ALIMONY ACTIONS. COSTS IN ALIMONY ACTIONS. lU Sec. 29 Jud. Act. " The High Court shall have juris- diction to gra.nt alimony to any wife who would be entitled to alimony by the law of England, or to any wife who would be entitled by the law of England to a divorce and to alimony as incident thereto, or to any wife whose husband lives separate from her without any sufficient cause and under circumstances which would entitle her, by the law of England, to a decree for restitution of conjugal rights ; and alimony when granted shall continue until the further order of the Court. R. «. 0. 1877, c. -40, s. 43. Con. Rule 1185. No application for costs in an aiimony action is to be made until the time for delivering the defence has expired, and no costs shall be ordered to be paid de die in diem by the defendant beyond the amount of the cash disbursements actually and properly made by the plaintiff's solicitor. R. S. 0. 1877, c. 40, s. 47 ; Chy. 0. 489. Con, Rule 1186. hi case the plaintiff in an alimony action fails to obta.n a judgment for alimony, no costs beyond the amount of the cash disbursements actually and properly made by the plaintiff's solicitor, shall be ordered to be paid by the defendant. R. S. 0. 1877, c 40, s. 48. Prior to the passing of the Statute 32 Vic. chapter 18 (now Con. Rules 1185, 1186), the defendant husband in an alimony suit was bound to pay the costs of the plaintiff's solicitor in any event, following the authorities in the ecclesiastical courts. This was the case, even where the COSTS IN ALIMONY ACTIONS. 109 wife was to blame, and failed to obtain a decree for alimony. McKay v. McKaij, 6 Gr. 380. And where the plaintiff succeeded she was entitled to her full cosits of suit, that is, to costs as between solicitor and client. The reason given for this was the then state of the law with reference to the property of a married ,,'oman, it being at that time under the control of the husband by virtue of the martial relation. Smiles v. Soides, 3 Gr. 113. It does not appear that the legislation respecting married women has wrought any change in the law as to the pay- ment of disbursements in England. It can only have that effect here, when the wife is actually in receipt of such independent and separate means of support as will enable her to live and pay the costs of litigation without alimenta- tion pending the action for alimony. Knapp v. Knapp, 12 P. R. 105 ; and see Magurn v. Magurn, 10 P. R. 570 ; Sinden v. Sinden, 11 P. R. 140. And the rule still appears to be to give a successful plaintiff in an alimony action costs as between solicitor and client. See Iloblin v. liohlin ; Ferris v. Ferris, post. The only test in regard to the allowance of the costs of particular proceedings in alimony suits appears to have been whether or not they had been vexatiously incurred. Even if the proceedings were abortive, if they were had in good faith, then costs of such proceedings were taxable to the plaintiff's solicitor against the husband. Glennie v. Glennie, 1 Chy. Ch. 155. An order for security for costs will not be made in an alimony action. As the wife would not, in any case, be ordered to pay costs, such an order would be merely a bar in the way of her proceeding without any possible benefit to the defendant. 'i«i 110 COSTS IN ALIMONY ACTIONS. % S 'it I' m' Semhle, if the wife is out of the jurisdiction and is acting in a manner that cannot be juntified, and is abusing the process of the Court, or if she has separate property, the Court might alter the practice. Bennett v. Bennett, 7 P. E. 54. The defendant by his answer offered to receive his wife and children and support them. At the hearing the plain- tiff did not call witnesses, but agreed to accept the defen- dant's offer, whereupon a decree to that effect was drawn up whereby the defendant was ordered to pay the plaintiff's full costs ; and in pursuance of such decree the plaintiff returned to the defendant's residence. The Court, on rehearing, refused, under the circumstances, to vary the decree as to costs, although the plaintiff was strictly entitled under the statute to cash disbursements only. Keith V. Keith, 25 Gr. 110. Keit]i V. KcitJi was decided at the hearing by V.-C. Proudfoot, and in giving full costs as against the defen- dant, he acted upon the opinion that the consent given there by the husband to receive back and support the wife was equivalent to a decree for alimony within the meaning of that term in the statute. In a later case the learned Vice-Chancellor said he thought he had erred in this. lUnefrose v. Itinfirose, 10 P. E. 299. A woman brought a suit for alimony seventeen years after the marriage, ou the ground of refusal by the man to receive her as his wife. He set up the invalidity of the marriage, but while under examination stated that if it was determined that she was his wife he would receive her as such. The Court found there was a valid marriage, and directed that upon th*.' defer dant undeittiliing to receive the plaintiff as his wife, the bill should be dismissed ; but ordered the defendant to i)ay the plaintiff's costs as between solicitor and client, lioblin v. lioldin, 28 Gr. 489. COSTS IN ALIMONY ACTIONS. Ill The defendant in his defence alleged thit he had refused, and still refused, to support the plaintiff by reason of her having committed adultery with M. The evidence shewed that the plaintiff, on being charged by the defendant with adultery, and ordered to go away, left his house, though, before she actually departed, he forbade her to go. The defendant persisted in the charge of adultery, but did not attempt to prove it. The plaintiff proved none of the acts of violence alleged in her statement of claim. The defendant having, at the trial, after tlie plaintiff's evidence had been given, for the first time offered to take her back to his house. Held, that the judgment for alimony should stand over for six weeks to see if this offer was carried out, and that the plaintiff was, in any event, entitled to her full costs of suit. Ferris v. Ferris, 7 Ont. R. 496. During the pendency of a motion for interim alimony, the plaintiff returned to her husband. The plaintiff's solicitor asked for an order against the defendant for his costs, and the Master in Chambers directed the defendant to pay the plaintiff's costs as between solicitor and client. Leonard v. Leonard, 9 P. B. 450. The action was settled b3fore trial, the plaintiff returning to live with the defendant, and the defendant agreeing to pay the plaintiff's solicitor's costs. He afterwards refused to pay anything but disbursements. The Master in Chambers made an ordijr against ihe defendant for the costs, holding tiiat the plaintiff had not "failed " to obtain a decree. Moore v. Moore. 10 P. B. 284. In a later case where the facts were the same as in Leonard v. Leonard and Moore v. Moore, the Local Judge at Orangeville had made an order for the defendant to pay : ifcSl f « 112 CuSTS IN ALIMONY ACTIONS. li' , |i U full costs. On appeal from this order these cases were relied on by the defendant, but Proudfoot, J., held that the English authorities cited in Leonard v. Leonard had no application, as there is no statutor}' provision in England equivalent to the provisions of what is now Con. Rule 1186. Ringrose v. Ringrose, 10 P. R. 299, affirmed 10 P. R. 596. Upon an application for interim disbursements proof of the marriage is all that is required. Nolan v. Nolan, 1 Chy. Ch. 368. Where the marriage is admitted the defendant wiK not be allowed to go into merits. Carr v. Carr, 2 Chy. Ch. 71 ; Bradley v. Bradley, 3 Chy. Ch. 329. A marriage de facto may be inferred from conduct and reputation. The authorities, English and Canadian, go to this extent, that where it appears from the admissions of the parties, or from the affidavits of the one not impeached by the other that there has been a ceremony of marriage between them and the real controversy is whether that ie n valid marriage, then the Court adjudges that the litigation should be carried on at the expense of the putative husband, and that the plaintiff should receive interim support from him. The principle which underlies all the decisions is, that the allotment of alimony i^endente lite depends upon the martial relationship of the parties existing de facto. Walker v. Walker, 10 P. R. 633. The plaintiff applied for an order for witness and counsel fees in advance. The referee refused the order. The application was subsequently renewed) at the hearing, and Proudfoot, V.-C, ordered the cause to stand until a sum for necessary wiine'ss fees (but not counael fees) was paid by the defendant. Haffey v. Haffey, 7 P. R. 137. COSTS rN AlilMONY ACTIONS. 118 1 ,id On Decpuibor 1st, 1883, ihc Master in (.Muuiiberg made an order directing the defendant to i)ay the Mlaintiff beforr the trial *' on account of her interim dislMirsements for witness fees $'2'2.5i5, and on account of her disbursements for oi nsel $40."' Tbr (Ujfenibint appealed. Fekgu'son, J.— " The order appealed from says that the $40 is given for a counsel fee, and f am to say wJietlier or not this should liave been doiie. See Disliop on Afarriage L.nd Divorce, vol. [I. p. 35)4. After consultation with Mi*. Justice Proudfoot in legard to Uie princi'ple of his decision in //'(//'7/ V. Hdjf'cij. 7 V. II- i37, 1 am of opinion that the appeal must be diR»i».issed ^\ith costs. The order appealed from might be fuller in regard to the fee not being }iayable to the solicitor for the plaintilf or his partner as counsel, but [ cannot revirse it." Iiuinini v. Iiniium, 10 I*. It. r)HH. The plaintiff obtained a judguicnt at the trial, and the defendant appiialod to the Court of .Vppeal. The jjlaintiff now applied to a Judge of that Court in Cbainbers for an order for paymtiut by the defendant to the plaintiff before the hearing of the appeal of a sum for the purpose of pay- ing th It defe.ited the suituti' by suin;,' tiu liueliand for hih full costs, "as for iiccessarios supplied to tlic wife"; aiKi unless a distinction can he drawn Ix'tween a failure to obtain a jiid^Miient, as in liiii'imsr v. HiiuiroHf. and a similar failure by the death of tin- defeiidiint, all a plaii- tiffs solicitor has to do to make the husband or hih persoiKil representatives liable for full costs is to sue him. or tViera, in a distinct action as for necessaries supplied if' the wife. 'riu' defendant havin}? piesented a bill to the Senate for a divorce from his wife, the plaintiff was retained by the wife iis counsel before the (!(nnmittee of the Senate to op|M8e the bill. The defendant being informed that he must pay fro»ri day to day into the committee the costs of his wife's defence, promised the i)la.intifT that if the plain- tit!" would not insist on defendant so paying his fecH, he would |iay them to the plMintitf when taxed. The com- mittee having rejtorted the i)reaml)le of the bdl not proven, the wife applied to the Senate for a divorce and for main- tenance, and retained the plaintiff to .^tipport such appli- cation. lh\d, V\ji,soN. .T. — The Sei-ate could have no power to award alimony, and the plaintiff could not recover for his fees in promoting a bill for that ))urpo8e. McDotigall v. Camphell, 41 V. C. Q. B. HlJ'i. The defendant did not appear, and an order had been made for infcriyri alimony for the amount endorsed on the bill, which tlie defendant considcircid excessive ; on a motion by him to set aside the order, a reference was directed on the defendant paying the costs of tlie appli(;a- tion. U interpleader issue was directed. Security not having been triven the sheriff sold the goods. 8HKUIFF S COSTS. 125 Before trial tliR phiintiff (tho execution creditor) aban- doned, and an or.ler was ni.nde for i)ayincnt by the plainiilV to tho chiimant and tlic sheriff of " their costs occasioned by snid intcrphader order and irtterpleader issue." 'riii.> order was amended, and the plaintill was fm-ther direct((l to pay tlie sheriffs [xissession money and other expenses occasionod by the sale and the costs of the sale. Upon a[)[)eal from the settlement of the sheriifs account, Ht'hl, \l) That the sluritf was not entitled to poundage ; (2) That the slu.'rifT was entitled to possession money and other expenses !)y the terras of the onlers, which had not been appealed from ; (3) That under the circumstances tlie charfje for posses- Hion money was not unreasonable ; nor was !?2 a day too much too pay to a man for keepinp; possession ; (4) A charge of §2.40 for taking a man out of possession was disallowed. (5) Adjournments of sale allowed at lifty cents each. The Manitoba d' N. W . li. Co. v. Roiith'y, (5 C. h. Times 494. A claimant served a notice upon the sherill claiming goods seized under a writ against another. Ui)on the return of the interv)leader summons the claimant appeared, obtained two enlargements, and «loing nothing to substar t.iate his claim was barred. Udd, that tlie claimant sliould [uiy the sheriffs «-0BtH. Cochrane v. McFarlaiu, 5 Man. L. H. 120; 8 C L. 'I'im. s 28. Where a claimant abandoned his claim after an issue directed, the sheriff was held entitled to bis costs from tlio time of directing the issue, i.nd of the a.pplication for those costs. Scales v Sanje.aon, 4 Dowl. 231. Hi m 126 SHERIFF S COSTS. ^1 The sheriff's right to poundage and sheriff's fees depend on the legaUty of the"seizure. If therefore it turns out that the goods helonged to the claimant, and ough^ not to have been seized, the sheriff will not get them. He cannot therefore retain them out of the proceeds of sale in the first instance, and he will only get them ultimately if the execution creditor succeeds. Barher v. Dynes, 1 Dowl. 169; Morland v. Ghittii, 1 Dowl. 550. The sheriff is entitled to he paid the expenses which he incurs in keeping possession of the goods seized, where he does so for the henetit of the parties who ha%'e agreed that he shall keej) possession. He is further entitled to any expenses he has heen put to in acting in ohedience to the rule of Court. Cahahe, 87, 88. And although under the English practice the sheriff is not, as a rule, allowed costs, yet "/here he has retained possession of the goods seized, at the req-est of the execu- tion creditor, and has sold them with the consent of all the parties, the execution creditor afterwards abandoning his claim, the sheriff has been held to be entitled to receive from him his costs of such possession and sale. Churchill, 186. A successful party in an interpleader issue moving for an order barring the execution creditors, having given the flherift' notice of the motion, was ordered to pay the 8herifi''s costs of appearing on the motion, although such notice was unnecessary. O'Brien v. Bull, 9 P. li. 494 ; 19 C. L. Journal '211. But where the sheriff is interested in the application, or any order made thereon may prejudice him, he is entitled to notice of such application, and if successful, to his cosfcB of appearing on it. Gray v. Alexander, 10 P. K. 858. In Ontario Bank v. Hevell, 11 P. R. 249, the Master in Chambers ordered the sheriff to pay into Court the gross 1 COSTS OF THE PARTIES. 127 proceeds of the sale, for the reason that if the eUiimant should succeed he would he entitled to the whole proceeds of the sale, without any deduction. In a later case that came hefore the Divisional Court of the Chancery Division it was held that the practice laid down in the last case was not the proper practice, and the prohahle success of the claimant does not justify such an order. The claimant, hy not giving security, accepts the aliernative of a sale of the goods hy the sheriff, and the sheriff in selling the goods acts imder the intm-pleader order, and not for the execution creditor, and is entitled to retain his possession money and charges from the proceeds. If the claimant succeeds his proper remedy is to recover these expenses from the execution creditor, which he can do in a summary way, as that is one of the questions reserved by the order to be ultimately disposed of. Reid V. Murphy, 12 P. K. 338 ; 8 C. L. Times 5. See McLarm v. Canada Central R. \V. Co., 10 P. 11. 328 post. •^1 Co.st.H of (lio friXt'fiitioii d'odiloi* and C'laiiii- uiit. As between the parties to the issue, the general rule as to costs applies as well to the trials of interpleader issues as to any other cases. Janes v. Wiiitbread, 11 C. B. 419. These costs cover the costs of the sheriff's motion for interpleader, the costs of the trial of the issue, and costs of the subsequent applications. Bellhouae v. Gann, 20 U. C. Q. B. 555. Where an issue was directed to be tried between an exe- cution creditor and a claimant, and the latter refused to try, and abandoned his claim, ho was held liable to pay the execution creditor's costs down to the time of his claim 128 (K)HTS OK TM., PAHTIE8. IH m.i '4lllii?-j '-^^^ ' m bein;; ai)aiuloTu-(l. iuid of the aijplvinj:^ to take the money ])air the Master deems it proper to award costs to either party, the judgment or order may direct payment of a sum in gross in lieu of taxed costs, to be fixed by himself or the officer who settles the order, and direct by and to whom such sum in gross is to be paid. See Chy. 0. 225, 304, 305, 56i, 585, 586. 117f>. Where the official guardian or other guardian of an infant, lunatic, or person of unsound mind, is entitled to cobu3, or against any party to an action or proceeding, the Court or Judge may order the successful adult party, if any, to pay such costs and add them to his own. IIMIK The costs of any application for an attachment of debts, and of any proceedings arising from, or incidental to, such application, including examination of the debtor or other person liable to examination, shall be in the discre- tion of the Court or a Judge. See J. A. Rule 378. llHl. Where the costs of one defendant ought to be paid by another defendant, the Court may order payment to be made by the one defendant to the other directly ; and it is not to be necessary to order payment through the plaintiff. Chy. 0. 319. 1IS2. The costs on all proceedings where a High Court case is tried in a County Court, or a County Court case in the High Court, shall be the usual costs of such cases in the Court in which the action was brought. R. S. 0. 1877,. c. 49, s. 43. 138 10STS 1IH:<. x'hc vlisuursements incurred in any cause, matter or proceeding in obtaining copies of the evidence for tlie purpose of moving against a judgment or for a new trial, shall, unless the Court otherwise orders, be costs in the cause to the party obto.ining and paying for the same. C. L. Rules 10th March, 1876, 3. ]IM4« In cases not otherwise provided for, the Ta'^ing Officer may in any caui^e, matter, or other proceeding, allow a reasonable sum for the expense of a shorthand writer, on the certificate of the Judge before whom the examina'ioa of any witness or witnesses: in any such cause, matter, or other proceeding takes place. C. L. Bules 10th March, 1876, 7. llKfS. No application for costs, in an alimony action, is to be made until the time for delivering the defence has expired, and no costs shall be ordered to be paid de die in dibVi by the defendant beyond the amount of the cash dis- bursements actually and properly made by the plaintiff's solicitor. R. S. 0. 1877, c. 40, s. 47 ; Chy. 0. 489. 11S«. In case the plaintiff in an alimony action fails to obtain a judgment for alimony, no costs beyond the amount of the cash disbursements actually and properly made by the plaintiff's solicitor, shall be ordered to be paid by the defendant. E. S. 0. 1877, c. 40, s. 48. IIH7. In all actions or proceedings instituted for ad- ministration, or partition, or administiatiou and partition, unless otherwise ordered by the Court or a Judge, instead of the costs being allowed according to the tariff, each person properly represented by a solicitor, and entitled to costs out of tlie estate — other than creditors not parties to the action or proceeding — shall be entitled to his actual disbursements in the action or proceeding, not including counsel fees, and there shall be allowed for the other costs Il COSTB. 139 of the suit pa3'able out of the estate, a commission on the amount realized, or on the value of the property partitioned in the action or proceeding, which commission shall be apportioned amonj^st the persons entitled to costs, as the Judge or Master thinks proper. Such commission shall be as followc : On sums not exceeding $500 20 per cent. for every additional $100 up to $1,500 5 •' " for every additional $100 up to $4,000.... 8 " " for every additional $1,000 up to $10,000.. 2^ " ' for every additional $1,000 1 " " and such remuneration shall he in lieu of all fees, whether between " party and party," " as between solicitor and client,'' or " between solicitor and client." Chy. 0. 643. IIHS. When two or more actions or proceedings are instituted for administration, or partition, or sale, the Judge may, in his discretion, disallow all or any of the ijosts of any action or proceeding which in his opinion has been unnecessarily prosecuted ; where any one of the parties, constituting a class formed by a Master for repre- sentation in his office by one solicitor, insists on being represented by a ditt'erent solicitor, such party is personally to pay the costs of his own solicitor of and relating to the jn-oceedings before the Master, with respect to which such nomination has been made, and all such further costs as arc occasioned to any of the parties by his being repre- sented by a ditlerent solicitor from the solicitor so nomi- nated Chy. 0. 218, and 044. IIH!I. When anything in the course of an action or reference wiiich ought to have been admitted, lias not been admitted, the party who neglected or refused to make the admission may be ordered to pay the costs occasioned by his neglect or refusal. See Chy. 0. 234. J. A. llule 1()3. II it 140 COSTS. IIOO, No costs of proving a document shall be allowerl unless a notice to admit has been given under Rule G17, except when the omission to give the notice is a saving of expense. HOI. The coi .s of an application to extend the time for taking any proc 3ding shall, in the absence of an order by the Court or a Judge directing by whom they are to be paid, be in the discretion of the taxing officer. J. A. Rule 408. llO!2. In actions in the High Court of Justice no refer- ence or examination for the purpose of discovery, or examination of a judgment debtor, on which fees may be payable otherwise than in law stamps, shall be taken before the Judge of the County Court, or local Judge of the High Court, or Local Master being also a Judge of the County Court, by whom the order or i»ppointraeut for such reference or examination has been made. (d) References in administration and partition matters under these Rules, and other like references in mortgage actions are excepted from the operation of this Rule. J. A. Rule 549. llfKt. Where a petition in any action or matter is served, and notice is given to Jie party served that in case of his appearance in Court his costs will be objected to, and accompanied by a tender of costs for perusing the same, the amount to be tendered shall be $5. The party making the payment shall bo allowed the same in hi& costs, provided the service was proper, but not otherwise ; but this Rule is without prejudice to the rights of either party to costs, or to object to costs where no such tender is made, or where the Court or Judge shall consider the party entitled, notwithstanding such notice or tender, to appear in Court. J. A. Rule 484. COSTS. 141 1IS>4. Where any party appears upon any application or proceeding in Court or at Chambers in which he is not interested, or upon which, according to the practice of the Court, he ought not to attend, he is not to be allowed any costs of such appearance, unless the Court or Judge shall expressly direct such costs to be allowed. J. A. Rule 437. Il!l«1. The Court or Judge may, at the hearing of any action or matter, or upon any appeal, application or pro- ceeding in any action or matter in Court or at Chambers, and whether the same is objected to or not, direct the costs of any writ, pleading, petition, affidavit, evidence, notice to cross-examine witnesses, account, statement, or ^)ther proceeding, or any part thereof, which is improper, unnecessary, or contains unnecessary matter, or is of unnecessary length, to be disallowed ; or may direct the taxing officer to look into the same and to disallow the costs thereof, or of such part thereof, as he shall find to be improper, unnecessary, or to contain unnecessary matter, or to bo of unnecessary lengHi. In such case the party whose costs are so disallowed shall pay the costs occasioned to the otl T parties by stich unnecessary proceeding, matter, or length ; and in any case where such question shall not have been i.iised before and dealt with by the Court or a Judge, the taxing otticer may look into the same (ani as to evidence, although the same may be entered as ad in any judgment or order) for the purpose aforesaid, a d thereupon the same consequences shall ensue as if he had been specially directed to do so. See Chy. 0. 71. J. A. Rule 435 ; App. 0. 10. llfM». No allowance is to be made for any order for production or any notice or inspection under anv of the liules relating to production and insi)ection of documents unless it is shewn to the satisfaction of the taxing officer that there were good and sutficiont reasons for taking the II 142 COSTS. order, giving the notice, or making the inspection. J. A. linle 230. Taxation. 1IS>7. Where costs are awarded to be paid, it shall be competent to a taxing officer to tax the same, without an express reference to him for that purpose. Chy. 0. 316. Ilt»^. No bill of costs where the amount claimed exceed* $30 is to be taxed by the Registrars, the Master in Ordinary, the Master in Chambers or Clerk in Chambers, but every bill exceeding that sum is in Toronto to be taxed by one of the Taxing officers, notwithstanding anything ta the contrary contained in the order for taxation, Chy. 0. 310. llOS>. One day's notice of taxing costs, together with a copy of the bill of costs and affidavit of increase, if any,, shall be given by the solicitor of the party whose costs are to be taxed to the other party or his solicitor in all cases where a notice to tax is necessary. Rules T. T. 1856, 48. II300. Notice of taxing costs shall not be necessary in any case where the defendant has not appeared in person,. or by his solicitor or guardian. Rules T. T. 1856, 50. ISOl. The taxing officer shall have authority to arrange and direct what parties are to attend before him on the taxation of costs to be borne by a fund or estate, and to disallow the costs of any party whose attendance tlie officer shall in his discretion consider unnecessary in consequence of the interest of the party in the fund or estate being small or remote, or sufficiently protected by other parties interested. J. A. Rule 440. I20!3. Where two or more defendants defend by different solicitors under circuuistances that by the law of the Court, entitle them to but one set of costs, the taxing officer^ COSTS. 14B without any special order from the Court, is to allow but one set of costs ; and if two or more defendants defending by the same solicitor separate unnecessarily in their defences, or otherwise, the taxing officer is, without any special order of the Court, to allow but one defence and set of costs. Chy. 0. 315. I203. Where any party entitled to costs refuses or neglects to bring in his costs for taxation, or to procure the same to be taxed, and thereby prejudices any other party, the taxing otficer shall be at liberty to certify the costs of the other parties, and certify such refusal or neglect, or may allow such party refusing or neglecting a nominal or other sum for such costs, so as to prevent any other party being prejudiced by such refusal or neglect. J. A. Kule 441. I304. In any case in which a party entitled to receive costs is liable to pay costs to any other party, the taxing officer may tax the costs such party is so liable to pay, and nay adjust the same by way of deduction or set off, or may, if he thinks fit, delay the allowance of the costs such party is entitled to receive until he has paid or tendered the costs he is liable to pay ; or the officer may allow or certify the costs to be paid, and the same may be recovered by the party entitled thereto in the same manner as costs ordered to be paid may be recovered. J. A. llule 436. I203. No set-off of damages or costs between parties shall be allowed to the prejudice of the solicitor's lien for costs in the particular action against wiiich the set-off is Bought ; provided, nevertheless, that interlocutory costs in the same action awarded to the adverse party may be deducted. Rules T. T. 1850, 52. I200. Coats may be taxed on an award, although the time for appealing from or moving against the award has not elapsed. Rules T. T. 1856, 142. u '^i .1 ',■ 144 COSTS. 1307. All bills of costs or disbursements in actions brouRlit for the administration of an estate, or for partition, or for the foreclosure, redemption or sale of mortgaj^ed premises, and all bills in other actions where the amount is to be paid out of an estate or out of a fund in Court, or in which any infant, lunatic, or person of unsound mind is interested (or which shall be payable out of any estate in which any infant, lunatic, or person of unsound mind is interested), are to be revised by one of the taxing otticers of the Supreme Court at Toronto, before the amount thereof is inserted in any certificate, report, order or judgment. J. A. Rule 439 and 593. 120M. The Local Master or other local officer is forth- with, after taxing any such bill of costs, to transmit the same by mail to Toronto, addressed to the i)roper taxing officer, and he is to allow in the bill the postage for the transmission and return of the bill, and shall prepay the same ; and is to allow in the bill the sum of one dollar as a fee for the revision of the bill by the taxing officer at Toronto, and a law stamp for that sum, with postage stamps for the postage, is to be paid at the time of taxation by the party procuring the bill to be taxed ; and the Local Master or other officer is to transmit with the bill to the taxing officer at Toronto, the law stamp, and the necessary stamps for postage on the return of the bill to the Local Master or other officer. Chy. 0. 311. 1301I. The taxing officer at Toronto, upon receiving the bill of costs, is to examine the same, and to mark iu the margin such sums (if any) as may appear to him to have been improperly allowed, or to be questionable ; and he is to revise the taxation either «x parte or upon notice to the Toronto agent (if any) of the solicitor whose bill is in question, as iu his direction he may see fit ; but notify- ing such agent (if any) iu all cases where the taxation is COSTS. 145 not clearly erroneous, or where the amount in quesi.on is 80 large as in the judgment of the taxing officer, to make such notification proper. Such notiiication may he hy appointment mailed to the address of the agent (if any). If upon the revision the sums disallowed shall amount to one-twentieth of the amount allowed upon taxation, the taxing officer is to add to the amount taxed off, the amount of postages, and the sum of one dollar aforesaid, and is thereupon to re-transmit the hill so revised to the Local Master or other officer. Cliy. 0. 312. ItilO. In any such case no sum is to be inserted in the report of a Local Master or other officer as taxed and allowed for costs, until such revision by a taxing officer ; but in a case of urgency a writ of execution may issue to levy debt or costs, or both, upon the order of a Judge, subject to the future revision by the taxing officer. Chy. 0. 313. 1311. Pending a revision, judgment may be entered and execution issued, unless the Court or a Judg'j other- wise orders ; and in case of an execution being so issued, if the amount taxed is reduced on revision, the party entitled to the costs shall forthwith give notice of the reduction and of the amount thereof to the Sheriff or other officer in whose hands the execution had been pliced ; and the amount struck off on the revision shall be ded icted from the amount indorsed on the execution. J. A. llule 439 (d). I!S12. No mileage shall be taxed or allowed for the service of any writ, paper or proceeding, without an affidavit being made and produced to the proper taxing officer, stating the sum actually disbursed and paid for such mileage, and the name of the party to whom such payment has been made : and, except in cases provided for in Rule 254, no fees shall be allowed for the mileage w.T.c. — 10 146 CO ST 8. or service of writs of summons unless served, and sworn in the affidavit of service to have been served, by the Sheriff, his Deputy, or Baihff, being a Hterate person (or by a Coroner when the Sheriff is a party to the action), nor unless a return of the Sheriff or Coroner (as the case may be) is indorsed thereon. li. S. 0. 1877, c. 50, s. 835 ; Rule T. T. 1856, 160. 12i:{. All affidavits of increase must be made by the solicitor in the cause, or some clerk having the manage- ment thereof, or by the client. They must set forth the sums paid to counsel, naming them, and for what service, the names of witnesses, their places of abode, the places at which they were subpoenaed, and the distance which each such witness was necessarily obliged to travel in order to attend the trial, that every such witness was necessary and material for the client in the cause, that they did attend, and that they did not attend as witnesses in any other cause (or otherwise, as the case may be). The number of days which each witness was necessarily absent from home in order to attend such trial must also be accurately stated. If a solicitor attends as a witness, it must be stated whether or not he attended at the place of trial as solicitor or witness in any other cause, and whether or not he bad any other business there. The day on which the trial occurred should be stated. If maps or plans were used at the trial, the necessity for them must be shown in the affidavit, or no allowance will be made for them ; the sum paid for them must also be set forth, and that they were prepared or procured with a view to the trial of the cause. The taxing officer is authorized in such case to make a reasonable allowance for maps and plans. Rules T. T. 1856, 165. 1314. As to costs to be paid or borne by another party, no costs are to be allowed which do not, appear to 11 COSTS. 147 the taxing officer to have been necessary or proper for the attainment of justice or defending the rights of the party, or which appear to the taxing officer to have been incurred through over-caution, negHgence, or mistake, or merely at the desire of the party. J. A. Rule 442. 1215. If upon the taxation of costs it should appear to the officer taxing the ^ same that any proceedings hare been taken unnecessarily, and which were not calculated to advance the interests of the party on whose behalf the same were taken, it shall be the duty of the officer to dis- allow the costs of such proceedings, as well on the taxation of costs between solicitor and client, as en a taxation be- tween party and party, unless the officer shall be of opinion that such proceedings were taken by the solicitor because they were in his judgment, reasonably exercised, conducive to the interests of his client. It shall not be the duty of the officer, on a taxation of costs between a solicitor and his client, to disallow to the solicitor his costs of such pro- ceedings where it is made to appear that such proceedings were taken by the desire of the client, after being informed by his solicitor that the same were unnecessary, and not calculated to advance the interests of the client. Chy. 0. 806. 1216« Where costs are to be taxed as between party and party, the officer taxing the same may allow to the party entitled to receive such costs, the like costs as are taxable where costs are directed to be taxed as between solicitor and client, in respect of the following matters : 1. Advising with counsel on the pleadings, evidence, and other proceedings in the cause ; 2. Procuring counsel to settle such pleadings and peti- tions as may appear to have been proper to be settled by counsel ; 3. Procuring and attending consultations of counsel ; II 1-18 COSTS. 4. The amendment of pleadings ; 5. On proceedings in the Master's office. 6. Supplying counsel with copies of, or extracts from, necessary documents. Chy. 0. 307. 1217. The table of costs set forth in the Tariff A ap- pended to these Rules shall be that according to which all costs in civil actions in the High Court and in the County Courts shall be allowed and taved, and no other fees, costs or charges than therein set down shall be allowed in respect of the matters thereby provided for. I3IH. The fees and disbursements [layable in stamps or otherwise upon proceeding . the High Court and the Court of Api)eal shall henceforward be those enumerated in the Tariff B annexed hereto. Ni'ir. Bt2l5>. The fees and disbursements mentioned in the 2nd or " Lower Scale " column of the tariffs A and B. shall be the amounts taxable in respect of the services or matters there enumerated in all actions where equitable relief is sought in any of the following cases : — " (1) By a person entitled to, and seeking an account of the diialings and transactions of a partner^liip dissolved or expired, tlie joint stock or capital not having been over $800 ; " (2) By a legal, or equitable, mortgagee, whose mort- gage has been created by sonic instrument in writing, or a judgment creditor, or a person entitled to a lien or security lor a debt, seeking foreclosure or sale, or otherwise, to enforce his security, where the sum claimed as due does not exceed $200 ; " (3) By a person entitled to redeem any legal or e8, or otherwise, as the case may be, of the proper f{ es, accord- ing to the said tatitf. Chy. 0. 555. 1323. In every case certified for the said taritY in which it may happen that the solicitor becomes entitled to charge and be allowed according to the ordinary tarifif, the deficiency of the fees of Court is to be made good. Chy 0. 55(). 1224. In any case in which the fees of Court have been [)aid, according to the ordinary tariff, and in which it may happen that the solicitor becomes entitled to charge and be allowed his own fees, only according to the lower iU mi ^ !EI1 ' 150 COSTS. tariff, the excess of fees of Court so paid may be allowed upon the taxation of costs, if the circumstances of the case, in the judgment of the taxing officer, jubtify such allowance. Chy. 0. 557. I3ti»>. Where the seal is under the 126th section of the Judicature Act, impressed on any document which before the passing of The Ontario Judicature Act, 1881, did not require to be sealed, the fee of fifty cents mentioned in the 155th section of " The Judicature Act," shall not be payable on such document. T. A. Rule 503. Itl26. When a client or other person is entitled to the delivery of a solicitor's bill of fees, charges and disburse- ments, or a copy thereof, the bill or a copy thereof, as the case may be, is to be delivered within fourteen days from the service of the order. (a) The bill delivered shall be referre'^ +^^0 the proper master for taxation, and on the reference the solici- tor is to give credit for all sums of money by him received from or on account of the client, and is to refund what, if anything, he may on such taxation appear to have been overpaid ; (b) The Master is to tax the cost of the reference and certify what shall be fovmd due to or from either party in respect of the bill and demand and of the cost of the reference, to be paid according to the evc^t of the taxation pursuant to the statute; (c) The solicitor is not to commence or prosecute any action touching the demand pending the reference without leave of the Court or a Judge ; (d) The amount certified to bo due shall be paid forth- with after confirmation of the certificate by filing, as in the case of a master's report, by the party liable to pay such amount ; COSTS. 151 (e) Upon payment by the said client or other nerson of what (if anything) may appear to be due to the solicitor, the solicitor (if required) is to deliver to the said client or other person, or as he may direct, all deeds, books, papers, and writings in the said solicitor's possession, custody, or power, belonging to the said client ; ( f) The order shall be read as if it contained the above particulars, and shall not set forth the same, but may contain any variations therefrom, and any other directions which the Court or Judge shall see fit to make. See J. A, Rule 443. Ii2!37. When a solicitor's bill has been delivered, the order of reference shall be presumed to contain clauses (a) to (e) inclusive of Rule 1226, whether obtained by the solicitor, client or other person liable to pay the same. I32H. The order, when grantable of course, shall be issued on prjBcipe. J. A. Rule 444. 1329. When a party not principally liable to pay a bill applies for delivery of a copy thereof for the purpose of a reference, or for taxation of a bill delivered, and it appears that by reason of the conduct of the party princi- pall}' liable, he is precluded from taxing the same, but is nevertheless entitled to an account by the party principally liable, it shall not be necessary for the party so applying to bring an action for an account, but the Court or Judge may, in a summary manner, refer a bill already delivered for taxation, or may order delivery of a copy of ihe bill, and refer the same for taxation, and may add such parties not already notified as may be necessary to do complete justice to all parties. (a) The rights of the parties are to be adjusted by refer- ence to the provisions of Rule 122(5 as far as they are applicable, having regard to the relations of the parties to the application and reference. 152 roSTS. 1 1530. Any party who may be dissatisfied with the allowance or disallowance by the taxing officer, in any bill of costs taxed by him, of the whole or any part of anj' item or items, may, at any time before the certificate is signed, deliver to the other party interested therein, and carry in beforb the taxing officer, an objection in writing to such allowance or disallowance, specifying therein by a list, in a short and concise form, the item or items, or parts or pr.rt thereof, objected to, and may thereupon r.pply to the taxing officer to review the taxation in respect of the same. J. A. lUile 4-17. l!!8*t1. Upon such application the taxing officer shall reconsider anu review his taxation upon such objections, and he may, if he thinks fit, receive further evidence in res[)ect tliereof, and, if so required by either party, he shall state either in his certificate of taxation or by refer- ence to rtuch objections, the grounds and reasons of his decision tliereon, and any special facts or circumstances relating thereto. J. A. Kule 448. Shrriff's Fees. lt2:S2. The fees and allowances set forth in t!ic tariff C appended to these Rules shall be taken and received by sherift's and coroners in civil proceedings in lieu of all fees to which they have been heretofore entitled under the tariffs heretofore in force. See tariff, \i Feb. 1H74. 1 SittS. In case a part only is made by the Sheriff on, or by force of any execution against goods and chattels, the Sheriff shall be entitled, besides his fees and expenses of execution, to poundage only upon, the amount so made by him, whatever be the sum endorsed upon the writ, and in case tlu personal estate, except chattels real, of the defendant is seized or advertised on or under an execution, COSTS. 15B but not sold by reason of satisfaction having been otber- vfise obtained, or from some other cause, and no money is actually made by the Sheriff on or by force of such execu- "■ion, the Sheriff shall be entitled to the fees and expenses of execution and poundage only on the value of the property seized not exceeding the amount endorsed on the writ, or such less sura as the Court or a Judge may deem reasonable. R. S. 0. 1877, •'. 06, s. 45. 1334. In cases of writs of execution upon the same judgment to several counties, wherein the personal estate of the judgment debtor or debtors has been seized or advertised, but not sold, by reason of satisfaction having been obtained under and by virtue of a writ in some other county, and no money has been actually made on the execution, the Sheriff shall not be entitled to poundage, but to mileage and fees only for the services actually rendered and [jcrformed by him, and the Court or a Judge, may allow liiin a reasonable charge for such services, in case no special fee therefor is assigned in any table of costs. R. 8. 0. 1877, c '36, s. 46. 13;S«1. In case any person liable on an execution is dissatislied as to the amount of poinulage, fees, and ex- penses of execution claimed by a Sheriff, he may, before or after payment thereof, and upon notice to the Sheriff, apply to the Court or a Jnclge, and if, upon a statement of the facts, the Court or Tudge is of opinion that the amount is unreasonable, notwithstanding that it i;'. according to the tariff, the sanu shall be reduced or ordered to be refunded upon sucl- terms as to costs or otherwise, as the Court or Judge u).iy think ilt to impose. R. S. 0. 1877, c. CiQ, s. 47. lS:t<(* Upon the settlement of an execution, either in whole or in part, by payment, levy or otherwise, the Sheriff of otlicer claiming any fees, poundage, incidental 154 COSTS. expenses or remuneration, which have not been taxed, shall, upon being required by either plaintiff or defendant, or the solicitor of either party, and on payment or tender of the expenses of such taxation, and the further sum of 25 cents for the copy of his bill in detail (which he shall be bound to render) have his fees, poundage, incidental expenses or remuneration, as the case may be taxed by one of the Taxing officers of the Supreme Court, in the County of York, and in other counties by the proper Taxing officer of the county wherein such sheriff keeps his office. R. S. 0. 1877, c. 66, s. 48 ; 49 V. c. 16, a. 17. VJl\7' No sheriff shall without taxation collect any fees, costs, poundage or incidental expenses, after having been required to have the same taxed : and upon tender of the amount taxed, no feus, custs, poundage or incidental expenses in respect of proceedings 8ubsfc(piently taken shall be allowed to any sheriff. R. S. 0. 1877, c. 66, s. 49. I2.'$.H. It shall be the duoy of the taxing officer to tax the bills of costs preseuted to him for taxation, as herein required, upon payment or tender of his fees, and to give, when requested, a certificate of such taxation and the amount thereof. R. S. '^. 1877, c. 66, s. 50. It2:<1l. It shall be the duty of the taxing officer, upon proof of notice of the time and place of the taxation having been duly served upon the sheriff, deputy sheriff, or other officer charged with the execution of the writ, to examine the bills presented to him for taxation, as herein required, whether such taxation is opposed or not, and to be satisfied that the items charged in such bill are correct and legal, and to strike out all charges for services which, in his opinion, were not necessary to be performed. R. S. (). 1877, c. 66, s. 51. I'il0< Either party dissatisfied with the taxation COSTS. 155 may appeal therefrom as in ordinary cases. R. S. 0. 1877, c. 66, 8. 52. 1241- The Court or a Judge may, in or for the purposes of any interpleader proceedings, make vM such orders as to costs and all other matters as may be just and reasonable. Security for Costs. 1S42. Where it ;appears, by the writ of summons, notice, or other proceeding by which an action or matter is instituted, or by an indorsement thereon, that the plaint'ff resides out of Ontario, the defendant shall be entitled on praecipe to an order requiring the plaintiff within four weeks from the service of the order to give security in $400 for the defdndant's costs of the action staying all further proceedings in the meantime, and directing that in default of such security being given the action be dismissed with costs against such defendant, unless the Court or Judge upon special application for that }iurpo8e shall otherwise order, J. A. Eule -lai. 1343. In addition to any cases in which a defendant in any action, may by any law or by the practice of the Courts, be entitled to obtain security for costs from a plaintiff, security for costs maybe granted to the defendant or applicant in any action or proceeding in which it is made to appear satisfactorily to the Court or a Judge, that the plaintiff has brought a former action or proceeding for the same cause, which is pending either in Ontario or in any other country, or that he lias judgment or order passed against him in such action or proceeding, with costs, and that such costs have not been paid ; and such Court or Judge may thereupon make such rule or order staying proceedings until such security is given as to the 156 COSTS. Court or Judge seems meet. R. S. 0. c. 40, s. 97 ; c. 50„ 8. 70. 1344. In any action in which the plaintiff sues as an informer, or seeks to recover any penalty given to any informer or person who sues for the same as aforesaid, under any statute or law in which any penalty is given to any person who sues for the same, either for his sole heiietlt,, for the benefit of the Crown, or partly for his benefit and partly for the boneflv of the Crown, — the person so sued, or his agent, or solicitor, may apply to the Court in which the action was instituted or is pending, or a judge thereof, for security for costs, upon an aftidavit made by the defendant applying, showing that the action is brought to recover a })enalty, and thaf in the belief of the deponent, the plaintiff or informei ■ . >t possessed of property suflicient to anssver the coses of the action in case a verdict is given or judgment rendered in favour of the defendant, and tha; he (the said defendant) has a good defence to the action upon the merits, as he is advised and believes ; and the^Couit or Judge may make an order that the plaintiff or informer in the action shall give security for the costs to be incurred in the action, in the same manner and in accordance with the practice ni cases where a plaintilf resides out of t)io Province, and the order shall be ;t stay of the proceediiigs in the case, until the proper security is given as aforesaid. It. S. 0. c. 50, s. 71. 1245- In any action or matter in which security for costfl is requireil, the security shall be of such amount and be giviiu at such time or times and in such manner and form, as the Court or a Judge may direct. J. A. Jlule 429. ItSl^J. Where a defendant in any action is entitled to obtain security for costs from a plaintiff, the C'n»-!- ov Judge may^require the plaintifT to furnish ^IjC '-icini^y COSTS. 157 within a time to be limited in any order for such security, or by any subsequent orde»\ (a) If the phiintiff fails without sufficient excuse to comply with such order, he shall be lial)le to have his action dismissed as for want of prosecution, with costs, and the Court or Judge may make an order accordingly, 42 V. c. 15, s. 2. 12-17. Wlier(,' a bond is to be given as security for costs, it shall unless the Court or a Judge otherwise directs, i>e given to the party or persons requiring the security, and not to an officer of the court. J. A. liule 430. n I24.S. Whenever a party is under an obligation to give a bond as security for costs, he may, without special order, pay into Court a sura of money not less than half the peralty of the bond required, and the same when so paid in shall stand as security in lieu of tlie bond required. 124!l. The party so paying in money shall when })aying the same in ^itate the purpose for which it is so paid in, and shall forthwith serve a notice upon the opposite party H])ccifying the fact and purpose of such payment. l'^«>0. The amount of security' may be increased or diminished from time to time by the Court or a Judge. l!2*'¥l. Where an action is brought by a foreign plain- titi" liable to give security for costs, who indorses his writ of summons with particulars of liis claim in such a manner tliat, upon motion under Uule 739, an order allowing him. to sign judgment might be made, he may, on being served With an order for security for costs, pay into Court the sura of $50, 03 a partial corapliance with such order, and 158 COSTS. hereupon h. shall be at liberty to proceed with a motion for judgment under Eule 739, but the order for security shall nevertheless, in all other respects, have its full operation and effect. 1352. If upon such a motion the plaintiff is allowed to sign judgment for any portion of his claim, he may sign judgment and issue execution therefor, but shall not tat any other pi-oceedings until the order for security shall have been fully complied with. TARIFF. 169 T.j^:^x:r':E' .j^. •i P. if H 1 : TABLE OF COSTS -I f 1 IN THE HIGH COURT OF JliSTIl'E AND COUNTY COIKTS. General allowance for Plaintiffs and Dft'eudants, as well between Solicitor and Clent as between Party and Party. L< )WKK HlOHKU HCAMt Sl'ALK. AND COL-NTV ColHTH, $ 0. i| c. 1. InHtructions to Hue in undefended cawes H 00 '2 ((0 2. In defended ciwes 4 00 3 00 3. Instnictions to defend 4 00 3 00 4. InHtrufttionH fur jwtition where no writ of suramonn JBHUed a 00 1 00 Writs. 5. AJl write, except writw if executions, HiibjKenaH, and concurrent, and renewed writs . 2 00 1 00 fi. Concurrent writ 1 ^<0 75 1(50 TARIFF. Lower HiGHEK SOALK scalk. and County Courts. 8 c. $ c. 7. Renftwed writs (except writs of execution) 1 50 75 S. All writs if over four folios, for every folio 20 20 0. Subpiena ad teslificandum 1 00 .50 10. SubjHena duces tecum 12.") 75 11. All subpienas if over four folios, additional per folio. . . 1.5 15 12. Notice of writ for service in lieu of writ out of jurisdic- tion and copy I 00 75 18. (Alias, and subsequent, writs, to be allowed as originals. ) 14. SjK'cial indorsement of writ of summons \ W 75 l;">. Suinsr out any writ of execution G 00 4 00 Renewal of any writ of exticution 4 00 2 60 (In both cases, including placing .same in the Sheriff's hands, all attendances, mC. irsements and letters in connection therewith. ) Ooi'Y AND SkRVIOE OK WjUTH OF SUMMONS, AND OtHHR I'Hoi'H'HH, IC). For coj)y, including copy of notices required to be in- dorsed, e(«;h 1 00 If over four folios, for every additional folio 10 17. Hervidd of each copy of writ, if not done by the Sheriff or an officer employed by him, when taxable to solici- toT on Sheriff's default 1 00 18. If served at a distance of over two miles from the near- est place of business, or office of the solicitor serving aame, for each mile beyond such two miles 13 i Such al- lowance as the i\>. r or Kerviue oi wru oui oi junsuiuiiou - Taxing I Officer shall Ithinkfit. 75 10 50 10 Such al- lowance as the Taxing Officer orC.C. Judge shall think fit. Instructions aftbr Commbnckment ov Aotion. 20. To counsel in special n\att\>V8 1 00 50 21. To counsel in cowviuou matters 50 25 22. For sj>eoi!\l ntfidavits when allowed by the taxing officer U>r County Clerk in (\ C. cases.) 100 60 TARIFF. 161 26. 27. 28. 29. 30. 31. 32, ;«. 31. 37. Lower HlGHEK SCALS ^ Scale, and rSTRUCTIONS AFTEn COMMENCEMENT OF ACTION.— C'oM. COUNTT Courts. For special affidavit on production when allowed by tlu; taxing officer 2 0(J For pleadings in action j 50 For counter-claim, when such claim could not prior to the Ont. Jud. Act, 1881, have formed the subject of a set-off 2 00 For reply to such counter-claims « 00 To amend any pleading when the amendment is proper. 2 00 For confession of defence under Rule 440 2 00 For special 'lase in course of .action 2 00 For special case when no writ issued, or pleadings had, and no instructions to sue allowed 3 00 To add parties by order of Court or Judge 2 00 For brief 2 00 For every suggestion j (xi For adding parties in consequence of marriage, deatii, assignment, etc 1 oo For issue of fact, by consent, or Judge's order 2 00 f defend added parties after suggestion of death of original party, or on re vivor 2 00 For confession of action in ejectment as to the whole, lirln|W#,,,, MM.... 1 00 fu Htrilci) or reduoo 8^eol/tI |tjfy 2 00 Flit .such other iin|iortaiit step or pi-qcmUfi^ fu fhlf «^i^ m the taxing officer is satisfietl watmM »m% $ ami 2 00 1 00 1 00 1 00 1 00 1 00 1 (X) 1 (K) 2 00 1 00 50 1 (M) .jO 1 00 I 00 .50 1 00 1 m UhAWINII Pf.EADINOS, EtO. 40. statement of claim 2 00 41. If iibiivn ten folios, for every folio above ten, in addition 20 42. Statement of defen(!e, if five folios or under 2 00 43. If aliove five folios, for every folio in addition 20 44. Statement of defence and counter-clai/fi, up to fifteen folios 8 QQ 45. For every folio over fifteen () ^ 46. Reply and other pleadings for or on behalf of plaintiff or defendant 2 00 47. If above ten folios, for every folio in addition 20 48. Demurrer 2 00 40. Petition, tier folio 20 60. Issue for trial of facts by agreement or order, for every folio q 20 W.T.O.— 11 1 oa 15 1 00 30 1 50 15 1 w 15 I 00 15^ 20 162 TARIFF. 51. 52. 53. 54. 65. 56. 57. 58. HlOHRR Scale. Drawing Plbadingh, Etc.— Con. § c. In special or contested actions or luattirs on the Higher Scale to be increased to such sum as the Taxing Officer in Toronto may think fit 20 Special case, per folio 20 Drawing inttrrogatories, or answers for any purposes required by law, per folio 20 Drav ing reasons for or against apjM^al, per folio 20 (The a.br serv e. ) Taking cognovit and entering judgment thereon, when there has been no previous proceeding, and the true debt does not exceed §200 8 00 For same services when the true debt exceeds §200 12 00 Drawing and engrossing cognovit, and attending execu- tion, when there have been pievious proceedings 2 00 LOWKR Scale AND County Courts. i c. 20 20 20 20 8 00 10 00 1 00 Copies. 59. Of pleadings, brief and other documents, when no other provision is made, md copies projierly allowable 10 10 60. Certified copy of pleadings, or issue, for use of Judge . . 1 r»0 7^> 61. For every folio above 15, per folio 10 10 62. Of opecial and common orders of Court or a Judge .... 75 50 63. Of special order of Court above three folios, per folio . . 20 10 Notices, including One Copy. m 64. 65. 66. >67. 69. 70. Of api)earanc((, when duly entereil and notice given on the day of appearance, but not otherwi.se 50 To Sheriff, to discharge prisoner out of custody .50 Notice, in action for recovery of land, to defend for part of promises ; not to be allowed when defence limited by appearance 1 00 If above three folios, per folio in addition 20 Notice of claimant's or defendant's title in action for recovery of land, same fees. Notice of entry of appearance in action for recovery of land by a party not named in writ 50 iDemand of particulars 50 Particulars of claim, demand, set-off, or counter claim, fi ve folios or under 2 00 If exceeding five folios, per folio in addition 20 25 50 50 15 25 50 75 15 TARIFF. 163 LOWKU Higher Soalk Notices, including One Copv— Co» 71, 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85. Scale. « c. 86. 87. Notice of ...Imigsion of right and denial of ouster by a joint tenant ,j -q If alK>ve three folios, for every folio additional 20 Of discontinuance and one copy q 50 For every additional copy, per folio q !<» Of disputing amount of claim q .lO Of confession of action in action for recovery of land as to whole or part (^ ^ Notice in lieu of .statement of claim, and one copy. .... 50 For every additional copy, jx-r folio q iq Of ttial or assessment and one copy q 50 For every additional copy, per folio 10 Demand of residence of plaintiff ] q 50 Demand of names of i)artners 50 All common notices m .t above specified 50 Notice to admit, and produce, if not exceeding two folio and one ci ipy 50 For every additional copy, per folio q 10 For each necessary folio above two q 20 Notice of setting down on motion for judgment, i on further directions and one c(jpy ,j 5Q For every additional cojjy, per folio [ q 10 Notice of motion in Court, or Chambers, engrossing and copy to serve, per folio 3Q For every additional copy, per folj.j q 10 Notice of ta.xation, or appointment to tax, and one coi)y 50 For every additional copy, per folio 10 For preparing, and filling up for service, in any < '.use or matter, each notice to creditors to prove clai us, and each notice that cheque may be received, specify- ing the amounts to be leceived for principal and interest, and costs, if any— including mailing 25 Not ce of filing affidavits, when required, and one copy (only one notice to be allowed for a set of affidavits filed, or which ouglit to be filed together) .50 For every additional copy, per folio 10 Notice by defendant to third party, under Rule ;V29 . . . 1 00 AND County Court. S c. 40 10 2"» 4o 10 25 10 ti 25 25 25 25 10 20 25 t 10 15 10 25 10 25 25 10 60 Perusvls. 88. Of each of the pleadings as defin-- i by the Judicatur Act 1 00 50 V] A^ VI e^ >^^ ^. y'^ i? / 8MAGE EVALUATION TEST TARGET (MT-3) LO 2.5 I.I 2.0 (.25 1.8 U 11.6 A' Photograpliic Sciences Corporation .^i :/ 5^ «:/. ^ ^ * v^ ^ <^ ^^^ "^ \ 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 te 164 TARIFF. Pkrusal— C'o«. Lower Higher Scale Scale, and County Courts. 8 c. $ c. 89. Of special case by the solicitor of any party, except the one by whom it is prepared, when the case is sub- mitted in the course of the cai'.se 200 100 f Such ^ ' sum as 90. And in special, or contested actic^ns, or matters, or of I the Tax- interrogatories, and cross-interrogatories on com--' *"f • ' 50 mission Toronto thiuk.s . fit. . 91. Of affidavits and exhibits of a part ■ adverse in inter est, filed or produced on any application, Vvhere perusal is necessary if 20 folios or under 1 00 50 On the Higher Scale per folio ov'or 20 folios 05 (Not in any case to exceed the s\im of ^o.) Attkndanoss. 93. 94. W. Necessary attendances consequent on the service of a notice to produce or admit, or an inspection of docu- ments when produced under order including making admission, altogether 1 00 60- To be increased by Taxing Officer (or County Court Clerk; in cases of special, difficult and impinty Court Clerk, per hour , qq To be increased in the discretion of the Ta;ing Officer in Toronto, or, in C. C. cases, the C. C. Judge, to not exceeding per hour 2 00 Attendance on Master, or Registrar (or County Court Clerk), in special matters, per hour ■[ qq Every other necessary attendance q 50 On important i)oints and matters, requiring the atten- dance of counsel, the Master, or Examiner, or Referee, Judgment Clerk, or InHi)ector of Titles, may certify the amount of counsel fee proper to be allowed (to be noted at the time,) for the guidanoo of the TaxlMg Officer in To.vmto (or the Judge in C. C. cases,) who may allow tlie sane in lieu of faes for attendance. On the Lower Scale not to exceed .*.) Or cm special and important poin.s, and matters requir. ing the attendance of counsel, before Exhminer, Referee, or Coiinty Court Clerk, the County Court Judge may, in County Court cases in lieu of the feui for attendance, allow a cotmsel fee when counsel attend the same, not to exceed 85. Lower Scale Avn COUNTT Courts. 5 00 1 00 1 00 1 00 60 60 60 25 50 1 00 C 60 26 h:,i. ;1f| 1| 166 TARIFF. Higher Scale. Briefs. 8 c. lOy. For drawing briefs, five folios or under 2 00 110. " ' for each folio above five 10 111. For drawing brief, per folio, for original and necessary matter 20 112. Copy (if documents, other than pleadings, per folio. ... 10 113. Copy of brief for second counsel, when fee taxed to him, per rolio 10 Court Fees. 114. Fees after .statement of claim, or, when? statement dis- jxjnsed with, after filing writ, on defence, joinder of issue, trial, or argument before Courts or any other step in the cause, and on judgments, other than pra!ci{)e judgments in mortgage! cases. No two fees to be allowed to either i)arty when such proceedings are taken, or had, between the Hvst day of any sittings of the Courts, (fixed by Rule 216), <.r (R. S." O. 1887, c. 47, s. 12, as the case may be), and the first day of the following sittings so fixed 1 00 115. Fee on certified copy of pleadings for Judge 1 00 116. Fee on every order, or judgment to the party obtaining the same 1 00 117. Fee on prtecipe judgment in mortgage cases 4 00 AfFinAVITS. 118. Drawing' affidavits, per folio 20 119. Engrossing sams to have sworn, per folio 10 120. Copies of affidavits, per folio, when necessary 10 121. Common affidivitt: of service, including service by post when necessary, or of payment of mileagi' and of non- appcaraiK e, including copy, oath, and attendance to swear 1 00 122. The solicitor for pi.'paring each exhibit in town or country 10 Defendants. 123. Appearance, including attending to enter 1 00 For each luMitional defendant 20 124. For limiting defence in action for recovery of land in appearance, besides above allowance for appearance; not to be allowed when notice of limiting defence served 1 00 Lower Scale AND County Courts. $ c. 1 00 10 20 1G> 50 5a jjO 2 00 20 10 10- 75 10 60 10 60 TARIFF. 167 . Higher Scale Judgment, Rules, or Orders. 125. Drawing minutes of judqinent, or order, per folio, w hen preparetl by solicitor, under directions of Registrar, or Judgment Clerk, (or, in C. C. cases, of the C. C. •Tiirlge) 20 126. Judgment for non-appearance on specially indorsed writs, and in action for recoveiy of land \ Ot) 127. Attending for api)ointment to settle or pars judgment, or order of Court, copy and service 1 30 128. When served on more than on<* party, the extra copies and services are tr correspondence during the progress of on appeal to the Court of Appeal a reasonable sum in the discretion of the Taxing Offic; r may be allowed not excewiing. . 5 00 Lower Scale AND County Courts. « c. 20 50 50 50 ■i 50 25 26 1 00 2 00 Sales by Master, or Auctioneer, or real Representative in Partition Suits. 135. Drawing advertisements for the sale of real or jwrsonal estate under the direction of the Court, including all copies, except for printing 2 00 And for each folio over five, pei folio 20 (To be increased in the discretion of the Master (or in C. C. cases the C. C. Judge) to a sum not exceeding • ten dollars, when special infonnation has been pro- cured for the purpose of sale. ) 1 00 15 i9 168 TARllF. HlOHEK Scale. Sales by Master, Etc.— Con, S c. 136. Copies for printing ppr fclio 10 137. Each necessary attendance on printer 50 138. Attending .and making arrangements with auctioneer. . . 1 00 139. Revising proof 1 00 140. Fee on conducting sale wiien held where solicitor resides. .') 00 141. If solicitor is engaged for nK)ro than thrett hours, for every hour beyond that time 1 00 142. Fee on conducting sale elsewhere, besides all necessary travelling and hotel expenses, when solicitor attends with thi^ approval of the Master (or real rfjiresenta- tive) previously given 10 00 If the .sale occupies more than one day, the Master may allow him, in addition to his trav»>lling expenses, per diem, a sum not exceeding twenty dollars. The Master m.ay also allow to one other party to the suit his fees and e.xpenses for attending sales, if, in his opinion, it is necessary and projier that he should attend. Lower Scale AND County COURT.S. ? c. 10 2h ."JO .50 3 00 7.5 .5 00 Miscellaneous. 143. Statement of issues in Master's office, when recjuired by the Master 2 00 In special matters to be increased in the discretitmof the Taxing Officer in Toronto. 144. F(jr each folio over 10 20 145. When it has been satisfactorily proved that proceedings have been taken by solicitors out of Court to expedite proceedings, save costs, or compromise actions, an ..llowance is to be m.ade therefor in the discretion of ' tiie Taxing Officer in Toronto (or Judge of Comity tJourt in C. C. cases). 14G. Drawing bill of costs as between party and party for taxation, (including engrossing and copy for Taxing Officer, or C. C. Clerk), per folio 30 147. Copy, per folio, to serve 10 Counsel Fees. 148. Fee on motion of conrse, or on motion in matters not 8i)ocial 2 00 149. On special ex parte motion or application to the Court, (only one counsel fee to bo taxed) 5 00 1 00 20 20 10 1 00 2 00 TARIFF. Counsel Fees— Con, HlOHER Scale. To be increased in the discretion „f the Taxing Officer in ''' Toronto, (or Judge of County Court in C. C. cases who shall mark amount to be ta.xed on order of Court' if any, before taxation) to ' 10 00 ir.0. Fee on argiiment on .supporting or opposing applicati.'.n to the Court, or argument of demurrer, special case "'■'■^I'Pe-'^l ' n, 00 On Higher Scale and Lower Scale t(j be increased m the discretion (,f the Taxing Officer in Toronto. In C. C. to be increased in the discretion ..f the Judge, to 51. On consultations ^ , „ 52. Fee, with brief, on as.sessment jq 00 15a. Fee, with brief, at trial ■■■.■...... 10 W) To be increased by taxing otticer in his di.scretion to a Hum not exceeding ,?.10 to .senior coun.sel, and i^2() to junior couasel, in actions of a special an<1 imi.ortant nature, Provided that the 'J axing Officer in 'I'on.nto shall have power to tax increased fees, but more than one counsel fee shall not be allowed in any case not of a special and important nature ; not more tlian two in any case, Provi.le.l that if an api)lication to in- crease fees be made in the first instance to the Local Taxing Officer, and n.tiut granted, no application shall thereafter be made to the Taxing Officer at Toronto To be increased by tiie 'J'axing Officer at Toronto or the Judge (as the case may require) in actions of a si)ecial or iinportanc nature and on app(>als to the Court of Appeal, (on notice to the opposite party), to a sum not exceeding (hi C. C. cases no charge to be made by eitlier party in connection witii .siicli application.) 154. On argument or examination in Chambers in cases proper for the attendance of counsel and whore c<.un.sel attends 2 oo To be increased in the discretion of the Master in Cham- bers, or the Master in Ordinary in lligli Court cases. To be increased in tlie discretion of the Judge in C. C. cases t(- a sum not exceeding 166. On argument of appeal in the Court of Appeal, in the discretion of Taxing Officer at Toronto, not .'xceeding $H0 to the senior couiLsel, and r>0 to th.> junior counsel (in ordinary cases larger fees than $4i) to the senior 169 Lower Scale AND COL'.VTY Court. « c. 5 00 5 00 10 00 2 00 6 00 10 00 '25 00 1 00 6 00 I 170 TARIFF. Higher Scale. Counsel Fees— Co». $. c. counsel and $20 to the junior counsel not to be al- lowed) in High Court cases and in County Court appeals not exceeding $25. (Two counsel fees not to be allowed except in difficult and important cases. 1 ;■)(>. To attend reference to Master, C. C. Clerk, or Referee, when counsel necessary 5 00 To be increased in sjiecial and important matters re- quiring the attendance of counsel, in the discreticm of the Taxing Officer in Toronto, or County Court Clerk in C. C. cases, not exceeding) \t>7. Fee on dra»ving, and settling, allegations in prrecipe for revivor, in special cases, i)roix;r for opinion of counsel. 2 00 To be increased in the discretion of Taxing Officer, (or C. C. Clerk in C. C. cases,) to an amount not exceed- ing 5 00 1.58. On settling pleadings, interrogatories, special cases or petitions, and iwlvisingon evidence in contested cases, in the discretion of tiie Taxing Officer, (or C. C. Clerk in C. C. cases,) not exceeding 5 00 l.')9. On settling the appeal case and reasons for or against appeal 5 00 To Ih) increased in the discreticjn of the Taxing Offxe at Toronto in special and important matters to a sum not exceeding 20 00 160. When any fee is subject to be increased, in the discretion of the Taxing Officer in Toronto, either party to the taxation may, during its progress, require that such item shall be referred by the Local Taxing Officer to the Taxing Officer in Toronto, wliose decision shall be final as to that item, but this shall not prevent an appeal from such taxation. 161. The necessary letters and attendances incurred in obtain- ing the decisicm of the Taxing Officer in Toronto in any matters which are in his discretion shall be allowed as part (jf the costs of the cause. 162. The Taxing Officer in Toronto may apply to a Jtidge, )r the Courts, on the taxation of any item which is in , his discretion, or is referred to him. LOWBR Scale AND County Court. 3 c. .S OO (i 00 1 00 2 OO 3 OO 2 00 5 OO TARIFF. 171 Counsel Feks— Con, 163. Mo application shall be allowed by either solicitor, or counsel, to a Judge, or the Court, in reference to any item whifh is in the discretion of the Taxing Officers in Toronto, but this is not to prevent an appeal from a Taxing Officer. 104. On arbitrations, ccjunsel fees may be allowed and taxed on the same scale and conditions, so far as possible, as those hereinbefore prescribed for counsel fees at trials. Lower Higher Scale Scale, and S c. ( OUNTY Court. $ c. Note 1.— In taxing costs between 8olicit(;iper.s given out when required, per folio () 10 Every attendance upon any proceeding or enlargement theieof or selling i>roperty j 50 For each additional hour j 5q Fee on reiwrt .signed (only one to be allowed in each action or matter, on first report) 2 00 Every certificate, if not longer than two folios 50 For each folio over two 20 Filing each paper, or .sub.sequent order jj jo Taxing costs, per hour 2 00 Taxing cost.s, including attendance . , Making up and forwarding deiwsitions, bills of co.sts and proceedings in Master's office 50 Every special attendance out of office within twu miles, per hour occupied by reference or sale 2 00 Evory additional mile above two for travelling expenses 20 Every attendance on ajjplication to a Master in Chambers ... 1 00 Every order in Chambers 50 Searching files in office Do. on Higher Scale same allowance as to Deputy Registrar. la 10 20 10 20 10 10 ,50 50 20 Sil. 10 80 10 50 10 50 20 10 FEES TO BE PAYABLE IN STAMPS, etc. Clerk ok the Process, Clkrk of Records and Writs, Registrars, Local Registrars, Dei-utv Rkgistrvrs, Deputy Clerks of the Cuown, Clerk in Chambers, ACCOU.NTANT AND TaXINC, OFFICERS IN THE HiGH CoURT, AND THE Clerks of the County Courts. Every writ q 5q Every concurrent, alias, pluries or renewed writ 50 Additional on every Writ by Statute Cb) 50 50 40 (6) Imposed by R.S.0. 1887 c. 33, 8.155, and payable in stamps. 174 TARIFF. Fkbh to BR Payablb in Stamps, Etc.— Core. Every apjjearance entered, and filing memorandum theroof p]very apiKsarancG, each defendant after the first Filing every affidavit, writ, or other proceeding Amending every writ or other proceeding Upon payment of money into Court Upon payment of money out of Court Passing and certifying Rec(jrd (payable in cash to Deputy Clerks of the Crown, Local Registraia and Deputy Registrars nf)t paid by s.-\lary) 1 00 Entering action for trial or assessment (including H. C. cases entered for trial at C. C. ) payable in actions in the Chancery Division to the present Deputy Registrars so long as they retain office and are not jiaid by salary : in other cases payable to the Dep\ity Clerk, Local Registrar, or Clerk of Assize 2 00 (The fee of S2 payable by Statute to be i)ayable in cash to Deputy Clerks of the Crown, Local Registrars and Deputy Registrars not paid by salary. An additional fee of $5 cash to be also paid to the present Deputy Registrars so long as they retain office and are not paid by salary). On setting down on the paper for argument every demurrer or special case 20 Additional fee payable by Statute (b) 30 letting dow,; a cause for any other purpose 50 Subp(jBna, including filing prsecipe 50 Additional fee by Statute (h) 50 Every reference, inquiry, examination, or other special matter for every meeting not exceeding one hour .... 1 00 Every reference, inquiry, examination, or other special matter for everv additional hour or less 1 00 Fee on report made on such reference, etc 1 00 Attending on opening Commission 1 00 Every certificate made evidence by law, or required by the practice, including any necessary search 50 Additional fee where seal is required (h) 50 Every certificate for registration 50 Additional fee for Seal of Court or office (b) 50 Entering certificate of title or conveyance, per folio 10 LOWKB HlGHEP Scale SCAIE. AND Cot'KTY Courts. 8 C. « c. 20 15 10 10 10 10 30 25 30 30 30 30 50 50 20 20 20 75 50 1 00 50 50 20 10 <6) Imi)oaed by R.S.0. 1887 c. 44, a. 155, ai.d payable in stamps. TARIFF. 175 LOWKR HlOHKB Scale Scale. AND COUNTT Courts. S c. S c. 30 3<) Fees to be Payable in Stamps, Etc. —Con. Every ordinary rule or order Additional fee Dy Statute (b) q 20 Every special nile or order, not exceeding six folios, jier folio. . 20 20 Additional fee by Statute (/>) q 20 Every Chamber Order 050 050 Every interlocutory judgment or judgment by default 50 30 Additional fee by Statute (b) o 60 Every final judgment otherwise than judgment by default. . . 50 50 Additional fee by Statute (h) o (jq Taxing l)ill of costs, and giving allocatur or certificate 70 80 Additional fee by Statute (b) q 20 Entering order when necessary, per folio Q lo Q lo Taking accoi-nt on i)rceci()e judgment joo 050 Exemplification, or office or other copy of papers or proceed- ings required to be given out, per folio, besides certificate and seal wlien reqtiiied o 10 10 Additional fee by St-^o.-.e for Seal of Court (b) o 50 Examining and authenticating pap«?rs when copy prepared by solicitor— every three folios o 05 05 Every search, if within one year o 10 10 Plvery search, if over one year and within two years 20 10 Every search, if over two years, or a general search 050 020 Every affidavit, affirmatic n, etc., taken before them 20 20 Every allowance and justification of bail o 30 Taking recognizance of bail o 30 Entering satisfaction on record, and filing satisfaction piece, including any necessary search o 50 30 Every commi.ssion for the examination of witnesses 1 00 50 Making up and forwarding papers including bills of costs 50 10 Every commission for taking bail and affidavit (to be on parchment) 2 00 Entering exoneretur on bail piece 030 020 Making up records of conviction, or of acquittal, )jer folio. ... 10 Entering and docketing judgment o 50 For making the entry required in the debt attachment book and in cognovit book 050 050 b) Imposed by R.S.0. 1887 c. 41, s. 155, and payable in stamps. 17G TAKIFF. Higher Scale. Clerks oe the County Courts {Additional). 9 c. Every verdict taken, nonsuit, jury discharged, record withdrawn, or rule or order of reference at the trial Drawing appointments made hy the Judge Attending at every special hearing before the Judge under R. S. O. 1887, c. 53, s. 1, and at taking examination and evidence and at sittings in reference to the C. C. Judge from the H. C not exceeding one hour Every additional hour or l(-WER SCAI-K AND COIJNTV Courts. S c. 80 ;!(» 25 (JSerrece of Process and Papers. Service of non-bailable process, each defendant (no fee for affidavit of service in such cases to be allowed, unless ser- vice made or recognized, by Sheriff ; on Lo'ver and County Couri; scales, including affidavit of service) 1 50 Serving subpoenas, rules, notices, or other papers (besides mileage) 75 For each addilional party served .50 Actual and necessary mileage from the Court House to the place w.iere st^rvico of any process, paper or proceeding is made, per mile , 13 1 00 50 25 13 Arrest and Attachment. A»"re8t, when amotmt does not exceed $200 2 00 " " " !J400 4 00 " ' over §400 (i 00 Bail Bond or Bond to the limits 2 00 Assignment of the same 1 00 Mileage going to arrest when made, per mile 13 " convoying party arrested from place of arrest to the gaol, i)er im ile 13 Bringing up prisoner on attachment or Habeas Corpus, besides travel at 20c. i per mile 1 .50 2 00 4 00 1 oo 25 (1 13 13 1 00 Ahsciindiwj Debtors, Seizing est ate and effects on attachment against an absconding debtor 3 00 1 50 Valuators, each 1 00 1 00 Removing or retain! tig property, reasonable and necessary dis- bursaments and allowances to bo made by the Taxing " Officer or in tlie 0. C. by order of the Court or a Judge. Drawing bond to secure goods taken under an attachment against an aljscoiiding debtor, if prepared by Sheriff 1 50 1 60 :' % TARIFFS. 181 LnwKii „ , . Higher Scai.k Beptemn. Scalk. and ' County Conns. Precept or warrant to bailiflF in replevin o 75 40 Drawing notice for service on defendant in replevin 73 40 Delivering goods to the party obtaining the order of replevin. 3 00 1 oO For writ de retornu hahcndo | oo ().-,() Drawing replevin bond 2 00 1 (M> Assignment 1 00 ^ '_>;■> All necessary < -bursements for tlie possession, care and removal of pro|)erty taken in replevin. •furies. Notice of appointment for ballot of jury .W Notice to Clerk of Peace of such appointment 50 Fee on balloting s[)ecial jury 5 00 Fee on striking " 2 50 Serving each -iijecial juror (besides milejige at 13c. per mile). . 50 Returning paniil of special jurors x 00 Keeping and checking pay list of special jurors' attendance, in each case ^ X 00 2.^ L'5 2 50 1 25 25 .50 1 00 R littles, Poundage, Etc. Poundage on executions, and on attachments in the nature of executions, where the sum made shall not exceed $1,000 (in the C. C. on the sum made) 6 perct f> perot Where the sum is over 81,000 and under S4,0(M), upon the excess over §1,000 (in addition to the poundage allowed up t««1.000 3i3erct. Where the sum is §4,000 and over, upon the excess over $4,000 (in additi(m to the poundage allowed up to §4,000) IJ jjerct (Exchisive of mileage, for going t.) seisse and sell, and of all disbursements necessarily incurred in the care and re- " ' moval ot proj)erty). Schedule taken on execution, attachment, or other process, in- cluding copy to defendant, not exceeding 5 folios 1 OO 50 Each folio above 5 10 10 Drawing advertisements when required by law to be published in the official 6'tt;tf«c or other new.spaiwr, or to be posted up in a Court House or other place, and transmitting - = ^ same, in each suit j jjO q 75 182 TARIFF. Sheriffs and Coroners' Fees— Con. Higher Scale. Every iH'cessary notice t.f sale of goods (not more than .3), in each suit Every notice of postponement of sale, 75 The sum actually di3burse. THOMAS FERGUSON, J. .TOIfN E. ROSE, .T. THOMAS ROBERTSON, J. W. G. FALCONBRIDGE, J. W. P. R. STREET, J. HUCH Mac'MAHON, J. ¥- -X KEIIOK'S (;iI()SJ':S in action, a h exposition ol tlie Law lulatiiij,' to tliuassiKiimeut and Transfer of Stoiiritios, witli tliu practice tlicTeiuidor. l$y -J. J. Kciioc. C!loth, »2; IHSl, Half -calf, «-2.50. LKCKJOS J''(JJli'\IS AND I'UIUJKDHNTS <.f I'loadin^^s in the Cunrt of i;iiancoiy. Sccontl edition. By W. Luf^^o, 187(5. Half-calf, S'O. LEWIS' (K. N.) INDEX TO ONTARIO STATUTES. An Alpliabetical Indtx to Ontario Statutes, down to and incliid' "^ the year issl, incliidinji the Uo%ised Statutes of Ontario down to antl including idSi, 1HH4. Cloth, $2.50 ; Half-calf or sheep, 'if3. LEWIS' JUSTICES MANUAL. Containin;^ a sliort Suininiiry of the usual practiccand manner of procedure in ordinary caseH, coniiuj^ under the observation of Justices of the Peace, Coronrrs, Constables, Landlords, Bailiffs, etc. By E. N. Ijewis. Cloth, *L;jO; Half -calf. $-2. LEWIS (E. N.) ON SHIl'lMNG. A Treatise on the Law of Sliippin^ respectin^! Inland and Sea coast Shippin;^' of Canada and the United States. IHH"). Half-calf or Slieep, LOWlOU CANADA JURIST. .\ collection of Decisions, 1857-187".. -'() vols. Half-calf, flOO. N.B. — This Series is contimicd to date. L0\V1':R(!ANAI)A law J()[IRNAL and Ma^jax.inc' <.f Jurisprudence, containin^^ cases not elsewhere reported. l80()-8, 1 vols. Half-calf, IJIO. MACLENNAN'S (JAS.,Q.C.) JUD1(;ATURE ACT 1881, an.l subse(iuent Rules of the Sui)renie Court of .(udicature and the Hif^h Court of Justice, with tlie ordeis of the Court of Appeal. Second edition. By Thos. Lannton, M.A., LL.B. Half-calf, ^'). MANITOBA RKl'ORTS. (Temp. Wood). A collection of Decisions in tiie Court of Q.B. of Manitoba, in tiie time of Chief Justice Wood. Half-calf, f 10. MARITIME (JOTIRT RULES. The General Rules of the ^Maritime Court of Ontari(, to date with Eorms, Tariff of Costs and Fees. 1878. ftl. CABSWE!.!. & CO., IiAW PUBi:.ISHEBS, Etc.. 26 k 38 Adelaide Street East, Toronto. *- NEW inUTNSWlCK RErOKTS. KeportHof Cases flotornuiiwl by the Supreme Court of N. IJ. Subscription ill ikIviiiico Ijili. Ilalf-ciilf 1^7 per vol. as follows; — N. IJ. It. vol. 2 (Berton.) ' 10 tV 11 (Allen vols. r> it fi.) 12 iV l.'MIIivmiay 2 vols.) " " " " 14, lo A K; (I'li^sley ;{ vols.) " " " " 17 to 20 (Pugsloy and Burbidgo 4 vols.) il II a 21-24. NOVA SCOTIA KJOFOIITH. Subscription ^r. per vol. N. S. 11. vol. 2 (James.) N. S. K. " v.), 20 (Ilussell and Gcldert 7, H.) O'SULLIVAN'S CONVEYANCER. A Manual of Practical Conveyanciu}^, with Forms, Precedents and References. 13y I). A. OSullivan, LL.B. 1882. Halt-calf , .?4. O'SULLIVAN'S (D. A., LL.B.) HOW TO DRAW A SIMPLE WILI 18H;{. Paper.Sl. O'SULLIVAN S (D. A., M.A., D.C.L.) MANUAL OF COVERNMENT. A IVIanual of Government in Canada ; orthe principles and institutions of our Federal Constitutions. 2nd edition, 1887. Cloth, »3.25 ; Half-calf. $4. ROGERS' (R. VASHON, Ju.) LAW .iND MEDICAL MEN. A Treatise on the law relatinf,' to Physicians, Dentists and Druggists. 1884. Cloth, $1.50 ; Half -calf, ^2. ROGERS' (R. VASHON, Ju.) LAW OF THE ROAD ; or the Wrongs and Rights of a Traveller. 1881. Cloth, U 50 ; Half-calf, $2. SPLINTERS. A collection of humorous anecdotes from various sources. Cloth, $1.50. STEI'HIONS' ((J. n.) JOINT STOCK COMPANIES. A practical exposition of the law of Joint Stock Associations, including the Canada Clauses Act, 1877, and the Acts of Ontario and Quebec. 1881. Ilalf-calf, $7. STIOVI'jNS (J. G., Judge), on Indictable Offences and Sun inary Convictions. 1880. Cloth, $1.50. Ilalf-calf, $2.00. STEVI'-NS' (J. G., Judge) DIGEST of the ro[)orted and unreported cases of the Supreme Court of New Brunswick from 1825-1871). Second Edition. Half-calf, $ia.OO. STEVENS', DITTO, from 1880-1887. 1888. Half-calf, $5.00. TACHIO'S (Louis H.) LE(}AL HAND BOOK AND LAW LIST for the Dominion of Canada and a Book of I'arliamentary and General Information. 1888. Cloth, $3.00. CABSWZ:i.I.&CO., I.AW FUBXiISHEBS, Etc., 26 & 28 Adelaide Street East, Toronto. n- TAKf"IIKIir.AIT'H(Ho.v. Mi:. JiisTui:)CKniINAL LWV. Coiisoli.latioii and Aiiiciidm.Mit Acts ill force on 1st day of March, 1«M7. iiiul Kditioii, 18H8, Half-calf or circuit, #10.00. TAYLOR'S EQUITY JUlUSnUIDENCH. A Coinmeiitary on K(iiiity .hirispnidciice, founded on Story. By T. W. (now Chief JuHticc) Ta>lor, M.A., Q.C. 1«7;J. llalf- culf, $r>.oo. TAYLOR'S PRESBYTI<:RIAN statutes. A collection of the Public Statutes relatiiij.; to the Presbyterian Church in Canada, with .\cts and Ri'soliitions of the Cleneral Assembly and By-laws for the j^ovtrninent of the Colle>{es and schemes of tlio Church. By T. W. (now Chief Justice) Taylor, M.A., Q.C. Cloth, 75c. TIFFANY'S (E.JH.) REGISTRATION OF TITLES. Registry Offices— RoKistrars — Books of Oflice — Instruments to be Rci^istered- Proof of Rej^istration —Manner c)f Re^'isterint,' — Effects of Registerinj^ or oiuittiii}.! to Register— Fees— Forms, etc. iHfSl. Half-calf, »o.OO. TODD'S BRITISH COLONIES. Parliamentary (Jovenunent in British Colonies. By Alpheus Todd. 1880. Cloth, $o.00 Half-calf, fttl.OO. TRAVIS' (.1.) CONSTITUTIONAIi LAW. A Treatise on the Clonstitutioiuil IV.wers of Parliament^ and of tbe^Local Legislature under the British North America Act. 1884. Paper, $1.00 ; Cloth, $1.2.'">. .;30. law of WATSON'S POWERS OF^ CANADIAN 1'ARLIA:MENTS. By S. J. Watson, late Librarian of the Parliament of Ontario. 1880. Cloth, §1.00. UPPER CANADA REPORTS, 1823 to 18()7, 70 vols, as follows : Taylors K. B., 1 vol ; Draper's K. B., 1 vol. ; Q. B. O. S., vols. ; Q. B., '2") vols. ; C. P., 1(5 vols. ; Chy., 12 vols. ; Chy. Clia., 1 vol.; I'rac, .'} vols. ; Error and Apiiea!, ,'! vols. C. L. Clia., 2 vols. WALKEM ON WILLS (R. T., Q.C). A Treatise on the law relating to the E.xecutiou ane sent to any address, carriage prepaid, on receipt of the price. CABSWEI.I. ft CO., IiAW PUBLISHERS, Etc., 26 ft 28 Adelaide Street East, Toronto. X- -n