within eight days after such notice, such other party shall have liberty to inspect the same, without fee, and may take a copy thereof, if he thinks fit; and must, at or before the expiration of the eight days, or such further time as the Taxing Master shall in his discretion allow, either agree to pay the costs or signify his dissent therefrom, whereupon he shall be at liberty to tender a sum of money for the costs: but, if he makes no such tender, or if the other party refuses to accept the sum so tendered, the Taxing Master is then to proceed to tax the costs, according to the practice of the Court; and, in case the taxed costs shall not exceed the sum tendered, then the costs of the taxation are to be borne by the other party."

The parties served with a warrant may obtain copies of the bill to be taxed. When the day arrives the parties attend with the documents in the cause, and go through the bill before the Master. A certificate of costs is then prepared and filed.

An order directing the costs of a suit to be taxed warrants the taxation up to the time of the Master's making his report, and this it has been held to do, notwithstanding a reservation of subsequent costs, "not provided for by the decree," there being other costs by which these words might be satisfied.2 Where subsequent costs are not intended to be given, the direction should be confined to costs up to the decree, and the question as to subsequent costs, should be reserved.3

An order directing the taxation or payment of costs by two or more parties, is joint and several, and, if one of them dies, the costs may nevertheless be taxed and recovered against the others.4

The plaintiffs, however numerous, can have but one bill of costs and the same rule applies to defendants appearing by the same, by furnishing him with a copy of it; and it was contended that the same practice ought to continue under the new order; but the Court, after having directed a certificate, decided that there was no such practice before the order; and consequently, that, under the new order, the party to recover the costs need not give to the other party a copy of his bill before carrying it to the Master's office.

1 Quarrell v. Beckford, 1 Mad. 280; and see Clutton v. Pardon, T. & R. 301, 4.

* Quarrell v. Beckford, ubi supra.

Ibid.; and see Seton Dec. 40.

✦ Poole v. Franks, 1 Mol. 78; Meredyth v. Hughes, 3 Y. & J. 188; 2 Smith, Pr. 467, 3d ed.

same solicitor, however large their number or however diversified their interests; thus, if one solicitor is concerned for any number of defendants, whatever their interests may be, he is only entitled to one bill of costs for them all, although he may, in that bill, charge for separate answers of any of them, or for the employment of separate counsel for any of them at the hearing.2 In such cases, however, he can charge only one term fee and one attendance in Court for all of them.3

If one or more of several defendants, defending by the same solicitor, present a petition, and the rest, having a different interest to the petitioners, cannot join in the petition, but appear upon it to consent or to submit to the order of the Court, and all are ordered to have their costs of the petition, the solicitor can only be allowed one bill of costs; nor can he be allowed for separate attendances in Court, but only for separate briefs and separate fees to and attendance upon counsel.1

If a town solicitor happens to be concerned as agent for two different solicitors in the country, or if he himself is properly concerned for some defendants and as agent for others, the case is different, and he will be allowed to bring in two bills of costs; but he must, from the beginning of the suit, keep the defences separate, and take double copies of the bill, &c., as if two solicitors were employed; if he does otherwise, he will be allowed only one bill of costs, and the two solicitors in the country must divide the fees between them.5

In taxing costs, the Taxing Master is the sole judge of the fact, whether the business has been done, and of the proper charge to

1 See Pratt v. Bacon, 11 Pick. 495.

Wendell v. Lewis, 8 Paige, 613; Miller v. Lincoln, 6 Gray, 556. Where the defendants in a suit were very numerous, and lived at some distance from each other, and some had joined in their answers, and others had filed separate answers, the main subject of the controversy, however, being the same, viz., whether there was a partnership or joint liability between the plaintiffs and defendants, the Court directed, that in addition to one general bill of costs for the defendants, to be taxed as in an action at law, a specific sum should be taxed for each distinct answer filed to the original bill and to the amended bill. Clark

v. Reed, 11 Pick. 446. As to costs of separate answers, where the same solicitor is concerned, see ante, p. 742.

32 Smith Pr. 3d ed. 467. See Davis v. McNeil, 1 Ired. Ch. 344; Houghton v. Barney, 2 Ired. Ch. 393.

4 Ibid.

Ibid.

be made, and his decision upon this subject is final. It is also his duty to inquire, whether the business was required to be done; for if the solicitor negligently or ignorantly takes any unnecessary proceedings, it is the duty of the Master to protect the client from any charge in respect of such proceedings.1

When the reference is to apportion the costs of a suit, where part of them only are given to the plaintiff, and no costs are given as to the rest, in this case the Taxing Master looks over all the folios of the bill, answers, depositions and proceedings, and only the usual fees of such folios and proceedings as relate to the matter prevailed in are allowed.2 In doing this, however, the proper course appears to be, to apportion the costs of all the general proceedings in the cause, so that the party receiving the costs should have a fair proportion of the costs of each proceeding, and not merely those costs which were occasioned by the particular portion of the proceedings of which he is to have the costs. This principle was adopted in a case, where, in a suit for the administration of assets, the executor was charged with interest on the balances in his hands, and the reference was to tax the plaintiffs their costs, as to so much of the suit as sought to charge the executor with interest. The Master, in his taxation of the costs, allowed the plaintiff a portion of every general proceeding in the suit, whereupon the executor presented a petition complaining of the taxation, and insisting that he ought to have been charged with so much only of the costs of the suit as related to the question of interest; but Lord Langdale, M. R., held that the principle of taxation which had been adopted was right, and dismissed the petition with costs.3

Where one solicitor appears for three several defendants, and the bill, as to one of them, is dismissed with costs, the plaintiff can only be compelled to pay the costs of such proceedings as exclusively relate to that defendant, and one third of the costs of the proceedings taken for all three defendants. And it has been held, that where a solicitor appears in a suit for several defend1 Alsop v. Lord Oxford, 1 M. & K. 565.

3

2 For. Rom. 206.

Heighington v. Grant, 1 Beav. 228; Hardy v. Hull, 17 Beav. 355.

2 Smith's Pr. 466, 3d ed. A defendant to a suit in Chancery, appearing by the same solicitor that is employed for other defendants, is not liable to such solicitor for more than his own share; but plaintiffs in a suit are jointly and severally liable to their solicitor for the whole costs of the suit. Ibid.

ants, one of whom is entitled to his costs out of the fund, and the others not, the costs of the one entitled, are only that proportion of the costs due to the solicitor, with which the solicitor, as between the co-defendants for whom he has acted, could have charged the party entitled.1

It is to be noticed, that if, upon the taxation of costs, it should be made to appear, that the person who acted as solicitor for either of the parties had not, at the time such costs were incurred, been admitted a solicitor of the Court, the Master may disallow the whole of such costs, although they have been actually paid by the party; and the person acting as solicitor, had been admitted an attorney-at-law, and has since been admitted a solicitor of the Court. And it seems that, even if the fact, that the party was not a solicitor, should be discovered after the costs have been taxed and paid, the Court will entertain a petition to have them refunded.1

With respect to the mode of reviewing the Master's discretion in taxing a bill of costs by any party dissatisfied with his decision, the following Orders of June, 1854, give all the information necessary upon the subject.

By the 12th Order, "Any party who may be dissatisfied with the allowance or disallowance by the Taxing Master on any bill of costs taxed by him of the whole or any part of any item or items, may, at any time before the certificate is signed, deliver to the other party or parties interested therein, and carry in before the Master an objection in writing to such allowance or disallowance, specifying therein, by a list in a short and concise form, the items or item, or parts or part thereof objected to, and may thereupon apply to the Master for a warrant to review the taxation in respect of the same."5

By the 13th of the same Orders, "Upon the application for such warrant, or upon the return thereof, the Taxing Master is to reconsider and review his taxation upon such objection, and he

1 Harmer v. Harris, 1 Russ. 157.

Prebble v. Boghurst, 1 R. & M. 744. If the Master, upon the objection being taken, refuses to disallow the costs, the Court will, upon petition, direct him to review his report, and to disallow the costs in question. Sumner v. Ridgway, ib.

748.

3 Ibid.

* Coates v. Hawkyard, 1 R. & M. 746.

See Hoffman v. Skinner, 5 Paige, 526.

may, if he shall think fit, receive further evidence in respect thereof; and, if so required by either party, he is to state, either in his certificate of taxation or by reference to such objection, the grounds and reasons of his decision thereon, and any special facts or circumstances relating thereto."

By the 14th Order, "Any party who may be dissatisfied with the certificate of the Taxing Master, as to any item or part of an item which may have been objected to as aforesaid, may apply to the Court by motion or petition for an order to review the taxation as to the same, and the Court may thereupon make such order as to the Court shall seem just; but the certificate of the Taxing Master shall be final and conclusive as to all matters which shall not have been objected to in manner aforesaid."1

By the 15th of the same Orders, "Such motions and petitions are to be heard and determined upon the evidence which shall have been brought in before the Taxing Master, and no further evidence is to be received upon the hearing thereof, unless the Court shall otherwise direct." 2

SECTION V.

Payment of, how enforced.

WHEN Costs are ordered to be taxed and paid by one party to another, the Taxing Master, having taxed the costs, certifies the quantum to the Court; which certificate being filed, the solicitor has the option of two modes by which he may enforce payment. He may prepare and sue out a subpæna for costs, in the form pointed out by the Orders of May, 1845, which is as follows:

1 If a party is dissatisfied with the decision of the taxing officer upon particular items of the bill of costs, he must bring the questions before the Court, by an application on his own part, although the other party applies for a retaxation as to other items. Rogers v. Rogers, 2 Paige, 458. As to the retaxation of costs, see further, Andrews v. Ford, 2 Halst. Ch. 488.

2

* If a party insist upon having items included in his bill, which are not legally taxable, he will be charged with the expense of a retaxation; but if the other party also objects to items properly taxed, each party may be left to bear his own costs upon the retaxation. Doe v. Green, 2 Paige, 347. See Lloyd r. Brewster, 5 Paige, 87.

The method of suing out a subpœna for costs is the same as that of suing out a subpœna ad respondendum, see ante, p. 428, note.