original decree upon the hearing of the cause for further direetions, so it will refuse to entertain an objection to it on the ground which might have been made at the original hearing.1

When the cause comes on for further consideration, if there has been a sale of the estates, and the purchase-money in Court is to be distributed, the plaintiff's solicitor should serve the purchaser with a notice that the cause is coming on for further consideration, and that the purchase-money will be disposed of under the direction of the Court.2 So, also, if any person has obtained what is ordinarily termed a stop order, i. e., an order that a fund in Court or some part of it should not be paid out without notice to the individual obtaining the order, a similar notice should be served upon the person by whom the order was procured.

The course of proceedings upon the hearing of a cause upon further directions, is much the same as that pursued upon the original hearing, except that the pleadings are not opened. Formerly no evidence was admissible, except what had been entered in the decree and in the report, and it was necessary to present a petition for the purpose of obtaining any order or direction that required additional proof.

But now by the 13 & 14 Vict. c. 35, s. 28, "The Court may at the hearing of any cause, or of any further directions therein, receive proof by affidavit of all proper parties being before the Court, and of all such matters as are necessary to be proved for enabling the said Court to order payment of any moneys belonging to any married woman, and of all such other matters not directly at issue in the cause as in the opinion of the said Court may safely and properly be so proved."

Evidence may therefore be now given in support of such facts as might formerly be established by a petition, supported by affdavits, coming on with the decree on further directions.

Thus, if a tenant for life of the fund in Court had died since the decree, and the fund had become distributable amongst those in remainder, a petition might have been presented to the Court stating the facts of the death of the tenant for life, and praying the Court to make distribution amongst the parties who have be come entitled upon that event. So also, if after the report, a person entitled to a debt or legacy out of the fund in the suit had 1 Pritchard v. Draper, 1 R. & M. 191.

22 Smith, 421, 3d edition.

died, his personal representative might have presented a petition, praying that the debt or legacy belonging to the deceased party might be paid to him. In like manner, if, pending the suit, a party to it had assigned his interest in the fund, either absolutely or by way of mortgage, the assignee might have petitioned the Court, at the same time the cause came on upon further directions, that he might have the benefit of his assignment, and that payment might be made to him instead of the assignor. In all such cases, if the facts which formed the ground of the application were not admitted by all the parties interested, or if all or any of the parties interested were not competent to make an admission, they were stated in the petition and verified by affidavit.1 And now it would appear, that, in all such cases, affidavits may be adduced in support of an order or direction, without a petition.

An order made upon further directions is, in fact, a decree of the Court, and is drawn up, passed, entered, and enforced, in the manner pointed out in a preceding Chapter.

CHAPTER XXX.

OF COSTS AND FEES.

SECTION I.-Of Costs in General.

IT is the usual practice of the Court, where, upon the hearing, it adjourns the cause, not to give any directions upon the subject of costs till the further hearing.2 In this respect the Court of Chancery, to a certain extent, acts upon the rule adopted by Courts of Law, that unica directio fiat damnorum, and which, therefore, give no costs, except upon interlocutory applications, until the final judgment. Courts of Equity, however, do not, in all cases, consider themselves bound by this rule, and they frequently give costs in intermediate stages of the cause, without waiting for the final decree. In fact the giving of costs in equity is entirely discretionary, as well with respect to the period at 1 Nicholson v. Haines, 1 Col. 196.

2 See Scarborough v. Burton, 2 Atk. 111.

8

Ibid.; Bennet v. College, 3 Bro. C. C. 390. See Saunders v. Frost, 5 Pick.

which the Court decides upon them, as with respect to the parties to whom they are given.

When it is said that the giving of costs in Courts of Equity is entirely discretionary, it must not be supposed that these Courts are not governed by definite principles in their decisions relative to the costs of proceedings before them; all that is meant by the dictum is, that these Courts are not like Courts of Common Law, held inflexibly to the rule of giving the costs of the suit to the successful party, but that they will, in awarding costs, take into their consideration the circumstances of the particular case before it, or the situation or conduct of the parties, and exercise their discretion with reference to those points. In exercising this discretion, however, Courts of Equity are generally governed by certain fixed principles which they have adopted upon the subject of costs, and do not, as is frequently supposed, act upon the mere caprice of the Judge before whom the cause happens to be tried.' Another difference between the Courts of Law and Courts of Equity with respect to costs, frequently arises from the nature of the property over which Courts of Equity are called upon to exercise their jurisdiction. A large proportion of suits in Equity are instituted for the purpose of obtaining the administration of the property of deceased persons, and, in cases of that description, the habit of the Court is, not to direct the costs of the proceedings to be paid by one party to another, but to order the payment of them to be made out of the estate. The Court will also, for the purpose of affording due protection to trustees or others concerned in the 271; Clark v. Reed, 11 Pick. 449; Temple v. Lawson, 19 Ark. 148. And not the subject of Error. Cowles v. Whitman, 10 Conn. 121.

1 Brooks v. Byam, 2 Story C. C. 553, 554; Gray v. Gray, 15 Alabama, 779; Coleman v. Moore, 3 Litt. 355; Tomlinson v. Ward, 2 Conn. 396. Costs do not always follow a decree in favor of a party, even of one praying relief, but rest in the discretion of the Court, and are to be awarded or refused, according to the justice of each particular case. Kaye v. Bank of Louisville, 9 Dana, 261, 264; Tomlinson v. Ward, 2 Conn. 396; Hunt v. Lewin, 4 Stew. & Port. 138; Ran dolph v. Rosser, 7 Porter, 249; Travis v. Waters, 12 John. 500; Meth. Ers Church v. Jacques, 1 John. Ch. 65; ib. 166; Cowles v. Whitman, 10 Conn. 121: Coleman v. Moore, 3 Litt. 355. But see Hightower v. Smith, 5 J. J. Marsh. 54°. 544; Burgh v. Kenny, 1 Irish Eq. 264. And inasmuch as costs in Chancery do not necessarily follow a decree, there must not only be a decree in favor of a party, but there must also be an express order or decree for his costs, or they are lost. Connable v. Bucklin, 2 Aik. 221. See Travis v. Waters, 12 John. 33 S. C. 1 John. Ch. 85.

administration of trust property, order the costs they have been put to, to be paid out of the fund which is the subject of litigation. In considering the subject of costs, therefore, I shall direct the attention of the reader, 1st, To the rules upon which the Court acts in awarding the costs of a suit to be paid by one party to another: 2dly, To the rules which regulate their determination with regard to the payment of costs out of the fund.

The Court of Chancery also makes a distinction, with regard to the principle upon which the officer of the Court is to proceed in the taxation of costs, by allowing a larger proportion of actual expenditure to parties holding particular characters, than they allow in ordinary circumstances. This distinction is marked by the terms of costs "as between party and party," which are the ordinary costs allowed by the Court, and costs" as between solicitor and client," which are the costs allowed by the Court to parties filling the characters alluded to; a third section, therefore, will be devoted to the consideration of the principles of taxation, for the purpose of pointing out those cases in which the Court allows of the taxation of costs, upon a more extended scale than the usual scale of taxation between party and party; after which I shall consider, 4thly, The method of taxation and the course to be adopted to bring the determination of questions relating to the taxation before the Court; 5thly, The course to be adopted for enforcing the payment of the costs when taxed; 6thly, The several fees to be paid at different stages of the cause to the officers of the Court.

In treating of the subject of costs in this place, the attention of the reader will be directed to the costs only of the general proceedings in the suit, that is, to those costs which are technically termed "costs in the cause," the rules with regard to the costs of interlocutory proceedings and other incidental matters will generally be found upon referring to those parts of the treatise which have been appropriated to the consideration of those matters.

It may be observed, however, that, with respect to the costs of interlocutory proceedings, certain rules exist with regard to their being or not being "costs in the cause," and that those costs which do not come within the definition of "costs in the cause," under these rules, cannot be obtained as such without the special direction of the Court. What costs of interlocutory applications

by motion are to be considered as "costs in the cause," may be collected from the following rules. These rules, which apply when no special direction is given, are as follows:

1st. That the party making a successful motion is entitled to his costs as "costs in the cause," but the party opposing it is not entitled to his costs as "costs in the cause." 2

2d. That the party making a motion which fails is not entitled to his costs as "costs in the cause," but the party opposing it is entitled to his costs as "costs in the cause."

3

3d. That where a motion is made by one party and not opposed by the other, the costs of both parties are "costs in the cause." 4

Whenever, therefore, by reason of special circumstances, it was not the intention of the Court that these rules should apply, particular directions with respect to the costs must be given.

It may be convenient to mention here, that the 123d Order of May, 1845, has directed that, "Upon interlocutory applications where the Court deems it proper to award costs to either party, the Court may, by the order, direct payment of a sum in gross in lieu of taxed costs, and direct by and to whom such sum in gross is to be paid."

The costs of an abandoned motion are not costs in the cause, and therefore, where a party gave notice of a motion and died be fore the motion was heard, they were disallowed the costs of the abandoned motion, though the suit was revived by the executors.

It has always been the rule that, upon the question of costs, a defendant in Equity has the advantage of appealing to his own answer, and that, although such answer cannot be read as evidence on his own behalf, upon the matter in dispute between him 1 Memorandum, 1 S. & S. 357.

1

2 Ibid. Stafford v. Bryan, 2 Paige, 45; Halst. Dig. 176. If the object of the motion be in the nature of an indulgence to the party applying, he will pay the costs, although the motion is granted — [Browne v. Lockhart, 10 Sim. 420]; and the rule appears to be qualified in the case of injunction suits, according to the decision of the Chancellor in Stevens v. Keating, 1 Mac. & Gor. 659.

* Ibid; see, also, White v. Lisle, 4 Mad. 226. The rule applies to motions to obtain or to dissolve an injunction. Marsack v. Reeves, Mad. & Geld. 108; Staf ford v. Bryan, 2 Paige, 45. Where a party successfully opposes a motion and nothing is said about costs in the order denying the application, he is entitled to his costs of opposing as costs in the cause, if he obtains a decree for costs. Rogers v. Rogers, 2 Paige, 299. See Wilkinson v. Henshaw, 4 Paige, 257.

1 S. & S. 357.

"Lewis v. Armstrong, 3 M. & K. 69.