torney will not be costs in the cause (i). The recovery of CHAP. XXXI. the costs of rules made absolute or discharged "with costs, is now much facilitated by the 1 & 2 Vict. c. 110, s. 18. (See p. 1196). Where an amendment is allowed during the course of a Costs of cause on payment of costs, this means only the costs substan- Amendment. tially occasioned by the amendment. Therefore, where a plaintiff, after plea pleaded, obtained leave to amend his declaration on payment of costs, by increasing the amount of damages, and defendant afterwards paid money into court, whereby one of his pleas became unavailable, the court held, that he was not entitled to the costs of such plea, since they were caused by his own act, and not by the amendment (k). The costs of an attachment include all costs fairly inci- Costs of an dental to the suing out the attachment, and amongst them Attachment. they have been held to include the costs of an inquiry, directed by the court for the benefit of the defendant, in order to enable him to obtain his discharge (/). Trial. Attendance of As to the costs of the trial where a London agent has Costs of the been appointed to attend the trial of a cause, it is a matter within the discretion of the master, and with which, it seems, Attorney. the court will not interfere, whether the costs of a journey to London by the country attorney, to attend the trial, or a reference of the cause shall be allowed (m). The usual fee for necessary attendance at the trial will be allowed, though the attorney be a party to the cause (n). And, where a member of the same firm as the attorney who conducted the cause attended as a witness, the court held that his expenses were properly allowed (o). allowed. With regard to fees to counsel, the master exercises a dis- Fees to Councretion, regulated, to a certain degree, by the nature and mag- sel, what nitude of the cause. In cases of difficulty, in which points of law may arise, it is fit that the leading counsel should have the assistance of other gentlemen, to suggest what may be necessary in the course of discussion. In cases of that description, the allowance of counsel should not be regulated in the same manner as in an ordinary case, where no difficulty is likely to arise; accordingly, a plaintiff has been allowed for fees to three counsel in a case of difficulty (p). And where, in a case of difficulty, the master allowed for one counsel only, the court ordered his taxation to be reviewed (9). And the same where, in taxing defendant's costs on a new trial, in an action to recover 1,000l., where strict cross-examination was necessary, the master disallowed the costs of a second brief and fees, on the ground that it did not appear that defendant had any witnesses to call (r). Where there have been two trials, and the successful party is entitled to the costs of the second trial only, the master may BOOK IV. allow for fees to counsel on the second trial, with reference to the amount of those given on the first (s). PART I. Costs of Briefs. Costs of Evidence, &c. Costs of Bill of Exceptions. Costs of other Where, in actions on a policy of insurance against several, the attorney had only made out a full brief in one case, and short statements in the others, but the master allowed for the full briefs in all, the Court of King's Bench made a rule for him to review his taxation (t). The expenses of evidence and of witnesses generally form a very serious item in the costs of the cause, and the discretion of the masters as to these costs is almost unlimited. The costs of witnesses have been already considered in the first Volume, p. 236. And the costs of proceeding for the examination of witnesses abroad, have been treated of in Vol. I., p. 245. And the rules as to the costs of proving documentary evidence have been stated in Vol. I., p. 213. It will, therefore, only be necessary to mention here a few points as to the costs of other species of evidence. In an action on the case for the disturbance of a watercourse, the expenses of plans used for the information of the court at the trial have been allowed (u); so have costs of successful searches for pedigree (v). But the costs of experiments made to enable scientific men to give evidence, have been disallowed (x). A charge for a document tendered, but not received in evidence, cannot be supported (y). A defendant in error after affirmance is entitled to double costs of settling the bill of exceptions, such costs being costs in error, and not in the court below (*). The costs, in case of plea in abatement (a), nul tiel record Proceedings. pleaded (b), on demurrer (c), in error (d), on nonpros (e), nonsuit (f), new trial (g), venire de novo (h), judgment non obstante veredicto (i), arrest of judgment (k), and the various other proceedings in an action, are noticed under the respective heads, throughout the Work. (See the Index). Costs where made a Re manet, &c. Where the cause is made a remanet, the costs incurred in the Cause is bringing up witnesses, attendances, &c., are allowed to the party ultimately prevailing (7); and the same where a cause goes off upon any other occasion, without the fault or contrivance of the parties, and is afterwards brought to trial (m). Where one of the jurors absconded, and the plaintiff refused to proceed with the remaining eleven, and he afterwards took the cause down to trial, and had a verdict, he was held entitled to the costs of both trials (n). As to costs where a new trial is granted, see ante, 1104. Where Venue laid out of A plaintiff laying his venue out of London or Middlesex (8) Wilkinson v. Malin, 2 Dowl. 65: (t) Martineau v. Barnes, 1 Tidd, 666. (v) Johnson v. Lawson, 2 Bing. 341. (y) Bagnall v. Underwood, 11 Price, (z) Francis v. Doe d. Harvey, 5 M. & W. 273, in Cam. Scac. (a) Ante, 656. (d) Ante, Vol. I. 379. (e) Ante, 1056. (f) Ante, Vol. I. 314. (n) Standen v. Hall, Say. 272; 1 Ld. Ken. 338: Gibbins v. Phillipps, 8 B. & C. 438; 2 M. & R. 236, S. C.: Sparreno V. Turner, 2 Wils. 366. (m) Burchall v. Bellamy, 5 Burr. 23: see Seeley v. Powis, 3 Dowl. 372. (n) Harrison v. Bennett, 1 Dowl. 7. for the purpose of obtaining speedy execution, is entitled, if CHAP. XXXI. he succeeds, to his costs of trying in the place of trial, unless the venue has been so laid for the purpose of oppres- for sake of sion (o). London, &c., speedy Execution. Where there As to the taxation of costs, where there are several defendants, see ante, 1153; where there are several issues, ante, are several 1154 to 1160; and where there are double or treble costs, ante, ble Costs, &c. 1160. Issues, Dou as to the Tax. der 204. Directions to taxing Officers as to the Taxation where Amount Directions to under £20 (p).] By R. H., 4 W. 4, " in all actions of assumpsit, taxingOfficers debt, or covenant, where the sum recovered or paid into court, and ation. accepted by the plaintiff in satisfaction of his demand, or agreed Where to be paid on the settlement of the action, shall not exceed twenty Amount unpounds without costs, the plaintiff's costs shall be taxed according to the reduced scale hereunto annexed (p). Provided that in case of a trial before a judge of one of the superior courts, or judge of assize (9), if the judge shall certify on the postea that the cause was proper to be tried before him, and not before a sheriff or judge of an inferior court, the costs shall be taxed upon the usual scale." Writs of inquiry are, it seems, included in these directions (r); and where the writ having been issued for more than 207., the plaintiff, before execution, (judgment having been signed as for want of a plea), had given credit for a cross demand, reducing the amount of his claim to 17., the court held that the costs should be taxed on the reduced scale (s). But the costs of a writ of inquiry in covenant for unliquidated damages are not to be taxed upon the reduced scale (t). Also where the plaintiff had recovered by verdict a sum beyond another sum paid into court, the two sums together amounting to 201., the court held that the taxation of costs ought not to be on the reduced scale (u). A recovery of a judgment under 201. entered up under an award is within the above directions, and the costs should be taxed on the reduced scale accordingly (x), and the directions are not, it seems, confined to those cases only which are triable before the sheriff (y). In an action on an attorney's bill, to which there was a set-off, the cause being partially heard, was referred to the master, who was to enter into the whole account: the master found a balance in favour of the plaintiff of 27. 12s.: it was held, that the costs should be taxed on the reduced scale (z). Where, in an action for unliquidated damages an order is made for staying proceedings on payment of a sum under 20%., and costs to be taxed, the plaintiff is only entitled to costs on the lower scale(a). It is not necessary for the judge who certifies under the pro- Certificate to viso in the above rule, to enable a plaintiff to obtain full costs, (0) Vere v. Moore, 5 Dowl. 367; 3 Bing. N. C. 261, S. C. (p) See the Appendix. (g) See the scale in the Appendix at the end of Vol. II. (r) It is not necessary for the judge who certifies to enable a plaintiff to obtain full costs, to hear the cause throughout. (Nokes v. Frazer, 3 Dowl. 330). (a) Hoppell v. Leigh, 5 Dowl. 40; 3 Moo. & Scott, 188; 2 Hodges, 107, S. C. (t) Savage v. Lipscombe, 5 Dowl. 365; Patteson, J., diss. (u) Croft v. Miller, 3 Bing. N. C. 975; 6 (x) Masters v. Tickler, 2 H. & W. 81. (s) Parker v. Serle, 6 Dowl. 334. (a) Cook v. Hunt, 7 Dowl. 397; 5 M. & W. 161, S. C. entitle Plain BOOK IV. tiff to full Costs. Reviewing to hear the cause throughout(b); the cause need only be brought on for trial. There is no specific time in which the certificate must be given (c). If the cause be tried at Nisi Prius, and the judge before whom it is tried die without making his certificate, the plaintiff is without remedy as to the extra costs (d). Where a cause at Nisi Prius is referred to arbitration, care should be taken to give the arbitrator a power of certifying that the cause was proper to be tried before a judge, otherwise the attorney will only be able to claim costs upon the lower scale (e). Reviewing the Taxation.] The court or a judge will not, the Taxation. before taxation of costs, make an order as to the principle on which they are to be taxed, if objection be taken to that course (f), but they will sometimes order the taxation to be reviewed by the master, upon application by the party dissatisfied therewith, where the taxation has been made upon a wrong principle. Several instances of this have been given in the preceding pages. In general, however, the master is the sole judge as to what witnesses shall be allowed on taxation, and as to the mode of taxing costs; and the discretion used by him in taxation will not be brought into review before the court as a matter of course. Where the mistake, if any, arises from the ambiguity of an award, no attempt to set aside which has been made, the court will not interfere (g). The application to review the taxation must be supported by an affidarit pointing out specifically the objections to it (h). No objections can be gone into on the application, unless they are specified in the affidavit or rule (i). The affidavit should not enter into the merits of the case. It should shew that the master has made his allocatur (k). Affidavits used before the master on the taxation cannot be read on shewing cause against a rule for reviewing the taxation, unless they are referred to in the rule; and notice that they will be used is not sufficient (1). The costs of a rule for reviewing the taxation are not given where the mistake is with the master (m). An application to review the taxation of costs on a bill of exceptions, or other proceeding in error, should be made in the court of error (n). 3. Remedy for Costs. 3. Remedies for Costs. The remedy for costs for which judgment has been obtained is by action or execution in the ordinary way. The remedy for costs payable by rule of court is by attachment, as to which see post, 1264, or by execution under the provisions of 1 & 2 V. c. 110, s. 18, as to which see post, 1196. As to an attorney's remedy for costs against his client, see ante, Vol. I. 69 to 89. (b) Nokes v. Fraser, 3 Dowl. 339: Broggref v. Hawke, 6 Dowl. 67: Burchell v. Clark, 9 Leg. Obs. 330. (c) Ivey v. Young, 13 Leg. Obs. 381; 5 (d) Southwell v. Bird, 7 Dowl. 557. 249. (h) Daniel v. Bishop, M'Clel. 61; 13 Price, 129, S. C.: Williams v. Hunt, 1 Chit. Rep. 321: Aliven v. Furnival, 2 Dowl. 49. (i) Aliven v. Furnival, 2 Dowl. 49. (k) Cleaver v. Hargreave, 2 Dowl. 669, Exch. (1) Cliffe v. Prosser, 2 Dowl. 21. (m) Ward v. Bell, 2 Dowl. 76. (n) Francis v. Doe d. Harvey, 5 M. & W.272. As to setting off costs against costs, see ante, Vol. I. 457. CHAP. XXXI. Where the defendant after judgment signed, in order to avoid execution, paid debt and costs in the action, insisting however, at the same time, that he had a right to set off the costs of a rule obtained by plaintiff, which had been discharged, but not making any formal demand, upon motion the court directed the plaintiff to refund the amount of those costs (o). As to when security for costs may be compelled to be given, see ante, 1012. (0) Abernethy v. Paton, 5 Bing. N. C. 276. |