omission to do so may be ground for a rehearing or appeal.1 It has been already mentioned, that, where a tenant for life of an estate is entitled to costs out of the estate, the Court will direct an immediate sale or mortgage to raise the costs.2

It has been before stated, that where, after a bill has been dismissed for want of prosecution, the plaintiff files another bill for the same purpose, the Court will suspend the proceedings on the new bill, till the costs of the former suit have been paid, and, that it will even do so where the defendant in the second suit is executor of the defendant in the first suit; the same course will also be followed by the Court where the original bill has been dismissed at the hearing, without prejudice to the plaintiff's filing a new bill for the same matter. It seems, however, that the Court will not make such an order if the defendant takes any step in the new cause before applying for it.5

It may be convenient to mention here, that the 41st Order of August, 1841, directs, "That where a defendant in equity files a cross-bill against the plaintiff in equity for discovery only, the costs of such bill and of the answer thereto shall be in the discretion of the Court, at the hearing of the original cause."

It will be observed, that, according to the strict language of this Order, the discretion conferred by it upon the Court, can only be exercised at the hearing of the original cause. The consequence of this was, that if the plaintiff in the original suit never brought his cause to a hearing, no opportunity was afforded for the exercise of the power of the Court over the costs in the cross-cause.

Moreover, under the practice which prevailed before this Order issued, the defendant to a cross-bill for discovery was entitled to move for his costs immediately upon filing his answer; so that in a case where the plaintiff in the original suit dismissed his own bill, not only was the defendant in that suit unable to get the costs of his cross-bill for discovery, but he was liable to be compelled to pay the costs of the answer to that bill.7

The 125th Order of May, 1845, without discharging the 41st Order of August, 1841, has removed these evils, by directing that "The costs of a bill of discovery filed by any defendant to a bill for relief are to be costs in the original cause, unless the Court otherwise orders."

With respect to bills of discovery other than cross-bills, there does not seem to be anything in the recent Order to affect the previous practice, so that now as heretofore a defendant to a bill for discovery may move as of course for his costs as soon as he has put in an answer, and the time for excepting has expired.1 Where, however, the bill prays a commission to examine witnesses as well as a discovery from the defendant, the proper time to move for the costs of the discovery is after the return of the commission, for the conduct of the defendant in examining witnesses under the commission may influence the costs.2

But in the case of a bill to perpetuate testimony, the defendant may move as of course for his costs, as soon as the witnesses have been examined or the commission executed, and before publication, upon the allegation that he did not examine any witnesses.3

1 Attorney-General v. Burch, 4 Mad. 178. The general practice is, that a plaintiff, who comes merely for discovery and obtains it, shall pay the costs. Burnett v. Sanders, 4 John. Ch. 504; M'Elwee v. Sutton, 1 Hill Ch. 34; King v. Clark, 3 Paige, 76; Weymouth v. Boyer, 1 Ves. jr. 416; Hervey v. Talbutt, 1 Jac. & W. 197; Fulton Bank v. N. York and Sharon Canal Co., 4 Paige, 127; Dennis v. Riley, 1 Foster (N. H.) 50. This rule was adhered to, although the defendant demurred and his demurrer was sustained only as to certain formal parts of the bill, and overruled as to the residue, and was withdrawn and the bill amended, full and proper answers having been subsequently filed. Adams v. Porter, 1 Cushing, 170. But a defendant, who has been previously applied to for the information sought by the bill, and has improperly refused to give it, is not entitled to costs, though he makes the discovery when sought by the bill. King v. Clark, 3 Paige, 76; Burnett v. Sanders, 4 John. Ch. 504; M'Elwee v. Sutton, 1 Hill Ch. 34; Dennis v. Riley, 1 Foster (N. H.) 50. In a case where the defendant in a bill of discovery is entitled to costs, he may move for them as soon as the answer is perfected. King v. Clark, 3 Paige, 76; Dennis v. Riley, 1 Foster (N. H.) 50. Where an officer of a corporation is necessarily made a party, for the purposes of discovery merely, if the plaintiff is compelled to pay the costs of such discovery, he may have a decree over against the other parties for such costs. Fulton Bank v. N. York and Sharon Canal Co., 4 Paige, 127.

* Banbury v.

3

9 Ves. 103; Anon. 8 Ves. 69.

Wright v. Tatham, 2 Sim. 459; Beavan v. Carpenter, 11 Sim. 22; Foulds v. Midgley, 1 V. & B. 138; and ante, p. 956.

SECTION VI.

Court Fees.

It will be convenient before concluding this Chapter on Costs, to set forth a list of the Court fees now paid at different stages of proceedings in Chancery. These fees are sometimes paid in money, but more frequently by means of stamps; but in whatsoever manner paid, they no longer are received by the officers of the Court for their own use.

The stat. 15 & 16 Vict. c. 87, usually called the "Suitors in Chancery Relief Act," is very stringent on the subject, and the first three sections may be referred to for more precise information, should it be required.

The 5th section of the same Act, directs the several allowances then paid for copies of documents in various offices to cease, and authorizes the Chancellor to make regulations for making and delivering copies of pleadings and other proceedings, and of the documents relating thereto, and the manner in which such copies should be paid for.

Under the authority of this section, a General Order issued on the 25th of October, which it will be convenient to set forth.

It provides, with respect to copies of pleadings and proceedings:

"In lieu of copies of pleadings and other proceedings in the Court of Chancery, and of the documents relating thereto, being made and delivered by officers of the Court at the office in which they are filed or left, copies of such pleadings, proceedings, and documents (save as hereinafter excepted) are to be made, delivered, charged and paid for according to the following regulations: 1

1 By an Order of the 21st day of June, 1854: "I. From and after the 2d day of July, 1854, all office copies and other copies of pleadings, proceedings, and documents in the Court of Chancery shall (except in the cases hereinafter mentioned) be counted and charged for after the rate of 72 words per folio, and where such copies or any portion thereof shall comprise columns containing figures, each figure shall be counted and charged for as one word. II. From and after the 2d day of July, 1854, the charge for all transcripts of accounts made in the office of the Accountant-General shall be after the rate of 28. for each opening of such transcript, consisting of the debtor and creditor sides of the account to be entered therein."

1

RULES.

"1. The following copies are exempted from this Order, that is to say, office copies of proceedings filed in the Report Office; office copies of answers, pleas and demurrers; 2 office copies of depositions of witnesses, and examination of parties to be made for and taken by the party on whose behalf such depositions and examinations have been taken; 3 office copies of affidavits to be made for and taken by the party filing the same; and office copies of affidavits to be taken under Order XXXVII. of 16th October, 1852.4 "2. The party or his solicitor requiring any copy, save as hereinbefore excepted, is to make a written application to be delivered to the party by whom the copy is to be furnished, or his solicitor, with an undertaking to pay the proper charges.

"3. Upon such requisition being made with such undertaking

as aforesaid, copies of such pleadings, proceedings or documents, are to be made by the party or his solicitor filing or leaving the same, or who under the first rule may have taken office copies thereof.

"4. The copies are to be ready to be delivered at the expiration of forty-eight hours after the delivery of such request and undertaking, or within such other time as the Court may in any case direct, and are to be delivered accordingly upon demand and payment of the proper charges.

"5. The charges for all such copies are to be at the rate of 4d. per folio.5

"6. Copies of bills of costs are to be made side for side, so as to correspond with the bills of costs left in the office.

1 Any party requiring a copy of these documents must take a copy from the office.

The plaintiffs' solicitors will have to take office copies of these documents. An office copy of these documents will have to be taken by the party on whose behalf they are taken; and, with respect to affidavits, by the party filing them.

This Order is to the effect, that claimants need not take office copies of their own affidavits, but the party prosecuting the cause must take office copies of them.

By the 9th and 10th Orders of June, 1854 (ante, p. 40) provision is made for the case of persons suing in formâ pauperis.

"7. The folios of all copies are to be numbered consecutively in the margin thereof, and the name and address of the party or solicitor, by whom the same is made, is to be indorsed thereon in like manner as upon the proceedings in the Court; and such party or solicitor is to be answerable for the same being true copies of the original, or of an office copy of the original pleadings, proceeding or document of which it purports to be a copy, as the case may be. "8. In cases of ex parte applications for injunctions, or writs of ne exeat regno, the party making such application is to deliver copies of the affidavits upon which it is granted, upon payment of the proper charges, immediately upon the receipt of such written request and undertaking as aforesaid, or within such time as may be specified in such request, or may have been directed by the Court.

"9. Any party or solicitor who has taken any office copy mentioned in Rule 2, is to produce the same in Court, or at the Judge's chambers, when required for the purpose of the proceedings to which the same relate."

With respect to the manner of making copies, the 2d Order provides: "That all office copies, and copies to be furnished by par ties or their solicitors, shall be written on paper of a convenient size,1 with a sufficient margin, and in a neat and legible manner, similar to that which is usually adopted by law stationers; and in the case of copies to be furnished by parties or their solicitors, unless so written, the parties or solicitors furnishing them shall not be entitled to be paid for the same."

The 3d Order refers to the time for making copies: — "That in case any solicitor who shall be required to furnish any such copy as aforesaid shall either refuse, or for two clear days from the time when the application for such copy shall have been made shall neglect, to furnish the same, the person by whom such application shall be made shall be at liberty to procure a copy from the office in which the original shall have been filed, in the same way as if no such application had been made to the solicitor, and in such case no costs shall be due or payable to the solicitor so making default in respect of the copy or copies so applied for." The 4th Order directs, "That in case any solicitor by whom

1 Foolscap paper, with a quarter margin, is usually required.