1 restraining order, or an office copy thereof, will be required to be left; if payment is ordered to legal personal representatives, the probate or letters of administration, stamped for a sufficient amount, must also be left.2 1 Reg. Regul. 15 March, 1860, r. 16. 2 lb. r. 17; and see ante, pp. 1009 et seq.; and post, Chap. XLI., Payment out of Court. For terms of orders on further consideration, see Seton, 38, 39; 140 et seq.; Сн. ХХХ. CHAPTER XXXI. Costs not, in general, giv hearing. Exceptions. COSTS. SECTION I. Costs in General. WHERE the Court adjourns the further consideration of a cause, en at original it does not usually make any order as to costs until the further hearing.1 Where, however, some of the defendants are, or some part of the bill is, dismissed at the hearing, or where an improper defence has been set up, the Court usually disposes of the costs of the dismissed defendants, or the costs occasioned by the dismissed part of the bill, or the improper defence, at the original hearing.2 Costs given generally by the decree, include subsequent costs. Giving of costs is discretionary. Meaning of the term discretionary. 8 Where the costs are given generally by the decree, the subsequent costs will be included; and this will be the case, although there is a reservation of "the costs of the suit not before provided for," if there are other costs which might be included under these words. If, therefore, the subsequent costs are not intended to be included, the direction should be confined to the costs up to the decree.5 The giving of costs in Equity is entirely discretionary: as well with respect to the period at which the Court decides upon them, as with respect to the parties to whom they are given. It must not be supposed, however, that the Court is not governed by definite principles in its decisions relative to the costs of proceedings before it. All that is meant by the dictum, that the giving of costs in Equity is entirely discretionary, is, that the Court is not, like the ordinary Courts, held inflexibly to the rule of giving the costs of the suit to the successful party; but that it 1 Seton, 57; Morgan & Davey, 65. As to the delivery of bills of costs and taxations, on applications under the Solicitors' Acts, see post, Chap. XLIV., Solicitors. 2 Seton, 57. 3 Quarrell v. Beckford, 1 Mad. 269, 286; 5 Seton, 57. For form of such an order, 6 Scarborough v. Burton, 2 Atk. 111; Bennet College v. Carey, 3 Bro. C. C. 390; Millington v. Fox, 3 M. & C. 338, 352; Remnant v. Hood, 6 Jur. N. S. 1173, L. JJ.; see Saunders v. Frost, 5 Pick. 271; Clark v. Reed, 11 Pick. 449; Temple v. Lawson, 19 Ark. 148. The giving of costs is not the subject of error. Cowles v. Whitman, 10 Conn. 121. will, in awarding costs, take into consideration the circumstances CH. XXXI. § 1. of the particular case before it, or the situation or conduct of the parties, and exercise its discretion with reference to those points. In exercising this discretion, however, the Court does not consider the costs as a penalty or punishment; but merely as a necessary consequence of a party having created a litigation in which he has failed; and the Court is, generally, governed by certain fixed principles which it has adopted upon the subject of costs, and does not, as is frequently supposed, act upon the mere caprice of the Judge before whom the cause happens to be tried.2 A difference between the Courts of Law and Equity, with respect to costs, frequently arises from the nature of the property over which the latter are called upon to exercise their jurisdiction. A large proportion of suits in Equity are instituted for the purpose of obtaining the administration of property; and, in cases of that description, the practice of the Court is, not to direct the costs of the proceedings to be paid by one party to another, but to order payment of them out of the estate. The Court will also, for the purpose of affording due protection to trustees or others concerned in the administration of trust property, order the costs they have been put to, to be paid out of the trust fund which is the subject of litigation. Costs given out of the fund. In considering the subject of costs, the attention of the reader Course prowill, therefore, be directed: 1st, To the rules upon which the posed. Court acts, in awarding the costs of a suit to be paid by one party to another; and, 2dly, To the rules which regulate its determination, with regard to the payment of costs out of the subject-matter of the litigation. The Court of Chancery 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 char 1 Per Lord Cranworth in Clarke v. Hart, 6 H. L. Ca. 633; 5 Jur. N. S. 447, 453; see also Wortham v. Lord Dacre, 2 K. & J. 437, 438; Purser v. Darby, 4 K. & J. 41; Caton v. Caton, L. R. 1 Ch. Ap. 137, 149; 12 Jur. N. S. 171, 175, L. C. 2 Brooks v. Byam, 2 Story 553, 554; Gray . Gray, 15 Ala. 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. & P. 138; Randolph v. Rosser, 7 Porter, 249; Travis v. Waters, 12 John. 300; Meth. Epis. Church v. Jacques, 1 John. Ch. 65, ib. 166; Cowles v. Whitman, 10 Conn. 121; Coleman v. Moore, 3 Litt. 355; 3 See post, § 2. acters than it allows 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 the taxation of costs upon a more extended scale than the usual scale of taxation between party and party. After which will be considered: 4thly, The method of taxation, and the course to be adopted to bring the determination of questions relating to the taxation before the Court; and, 5thly, The course to be adopted for enforcing the payment of the costs, when taxed.* In treating further of the subject of costs, in the present section, 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 this treatise which have been appropriated to the consideration of those matters. Certain rules exist, with respect to the costs of interlocutory proceedings being, or not being, "costs in the cause;" and 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 laid down by Sir John Leach V. C. in 1823. These rules were the result of certain questions proposed to the Registrar, for the purpose of ascertaining in what cases the costs of a motion, where the Court gives no direction as to such costs, became "costs in the cause," to a party whose costs of suit are given upon the hearing, and are as follows: (1) 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) That the party making a more, 2 K. & J. 458; Finden v. Stephens, 12 Jur. 319, L. C., overruling S. C. 16 Sim. 40; 11 Jur. 898. 6 Memorandum, 1 S. & S. 357; Morgan & Davey, 31. 7 Hind v. Whitmore, 2 K. & J. 458, 8 1 S. & S. 357; 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 have to pay the costs, although the motion is granted. Browne v. Lockhart, 10 Sim. 420. $ 1. Unsuccessful motion which fails, is not entitled to his costs, as "costs in the CH. XXXI. cause;" but the party opposing it is entitled to his costs, as costs in the cause." 1 And (3) that, where a motion is made by one where unopparty, and not opposed by the other, the costs of both parties are posed. "costs in the cause."2 To these rules may be added a fourth, that opposition to where a bill is dismissed with costs, a defendant is entitled to his costs of unsuccessfully opposing a motion for an injunction, as "costs in the cause." Whenever, by reason of special circumstances, it is not the intention of the Court that these rules should apply, particular directions must be given with respect to the costs. Where the costs of interlocutory proceedings are reserved, they should be reserved till the hearing of the cause, or further order, and not to the hearing, simply: because, in the latter case, no order can be made relating to them unless the cause is actually brought to a hearing. 5 The Court will not order the payment of the costs of a cause without taxation; but, 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 Court does not, however, usually order a sum in gross to be paid, for the costs of interlocutory applications which are heard in open Court: unless the parties are poor, and anxious to put an end to the matter." In the case of proceedings at Chambers, a sum in gross is often ordered to be paid. The costs of an abandoned motion are not costs in the cause therefore, where a party gave notice of a motion, and died before the motion was heard, and the suit having been revived by his executors, who declined to proceed with the motion, the bill was subsequently dismissed with costs, and the Master, in taxing the costs, disallowed the defendants the costs of the abandoned motion, an application to the Court, for liberty to except to the Master's 1 1 S. & S. 357; see also White v. Lisle, 4 Mad. 214, 226. The rule applies to motions to obtain or to dissolve an injunction; Marsack e. Reeves, 6 Mad. 108, 109; Stafford e. 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. 4 Rumbold v. Forteath, 4 Jur. N. S. 608, V. C. W.; and see Gardner v. Marshall, 14 Sim. 575; 9 Jur. 958; Jones v. Batten, 10 Hare Ap. 11. 5 King v. King, 1 Jur. N. S. 972, V. C. W. 6 Ord. XL. 37; see Stahlschmidt v. Lett, 7 Jur. N. S. 1271; 9 W. R. 830, V. C. S. 7 London and Blackwall Railway Company v. Limehouse Board of Works, 26 L. J. Ch. 164, V. C. W.; see, however, Yearsley v. Yearsley, 19 Beav. 1; Dakins v. Garratt, 4 Jur. N. S. 579, V. C. K.; Gover v. Stilwell, 21 Beav. 182. 8 Seton, 94. 9 For what is an abandoned motion, see post, Chap. XXXV. § 2, Motions. where bill'afinjunction, terwards dis missed. Special directions as to costs of motions. Reservation tory costs, should be till hearing or further order. of interlocu ; Costs of aban doned mo tion. |