§ 6. for a sequestration; and, upon affidavit of personal service thereof, CH. XXXI. an order absolute will be made.1 Both orders are obtained on ex parte motions.2 corporation Where a corporation aggregate has been served with the subpoena Process for costs, the course of proceeding is by distringas, and sequestra- against a tion nisi and absolute, as in the case of non-obedience to an order aggregate. or decree.3 The person prosecuting the contempt will not, by issuing the attachment, lose any lien or right to set off which he may possess, in respect of the costs.* Lien or right not lost by of set-off, issuing attachment. What costs are not re coverable by subpena : of contempt. The above methods of proceeding apply to all cases in which costs are to be recovered by subpœna; but it is to be observed, that some costs are not recoverable by subpona: amongst these may be reckoned the costs of contempt. In the case of a contempt for not putting in an answer, the plaintiff may refuse to accept the answer until the costs of the contempt are discharged; or, if the answer has been filed without payment of the costs, he may move to take it off the file for irregularity. In other contempts, also, where the party is in custody, the detaining party should take care that the sheriff or other officer does not discharge the prisoner, or that he does not sanction his being discharged, until he has paid the costs of the contempt. The costs of amending a bill Amending must be paid before the bill can be regularly amended; and the payment of the costs of exceptions submitted to, is a necessary part Exceptions. of the submission." It may be mentioned here, that, where a suit was instituted by a next friend, on behalf of an infant, and the defendant was ordered to pay the costs, but absconded to avoid the process, the Court (the next friend being very poor) ordered the costs to be raised and paid out of a fund which had been realized in the suit for the benefit of the infant it is stated, however, that Lord King made the order with some reluctance.10 : A subpoena for costs formerly issued only against persons who were parties to the record." If costs were to be recovered against a person not a party to the record, the course of proceeding was, first to get an order nisi upon him to pay by a given day: and, if he did not pay by the day named, then to obtain an order that he 1 Ante, pp. 473, 496, 1066; Braithwaite's Pr. 262; Seton, 1228; ib. 1241, Table No. V. 2 For forms of orders nisi and absolute, see Seton, 1225, 1226; and for forms of motion paper, see Vol. III. 8 Ante, pp. 477, 497, 1067; Braithwaite's Pr. 262; Seton, 1228; ib. 1241, Table No. V. For form of order, see Seton, 1227; and for forms of motion paper, see Vol. III. 4 Bawtree v. Watson, 2 Keen, 713, 718; bill. In an infant's suit, where defendant absconded friend was poor, costs were ordered and next out of infant's fund. might pay by another day, or stand committed. We have seen, however, that now, the obedience of persons not parties to the record, is enforced in the same manner as in the case of persons not strictly parties.1 Besides the method of recovering costs by subpoena, the stat. 1 & 2 Vic. c. 110, has provided an additional remedy by writs of fieri facias, and venditioni exponas, and of elegit: by which costs, either alone, or together with a sum of money decreed or ordered to be paid by one party to another, may be recovered from the personal or real estate of the party to pay them.2 4 The method of preparing, issuing, executing, and returning these writs has been already pointed out. It is, however, to be recollected, that the order or decree under which the costs are to be paid must state by and to whom they are to be paid; and must be duly passed and entered, in the manner already pointed out, at least one month before a writ of elegit or of fieri facias can be issued upon it, and that the date of such entry must be marked upon the order. The decree or order directing the payment, or an office copy thereof, and an office copy of the Taxing Master's certificate, where the costs have been ascertained by taxation, must be produced to the Clerk of Records and Writs, at the time of issuing the writ." The above methods of procuring the payment of costs apply only where costs are payable from one party to another. Where they are payable out of the fund which is standing in the name of the Accountant-General, the party having the carriage of the order directing such payment bespeaks, at the Accountant-General's office, a check for the amount of the costs in favor of the solicitor entitled thereto who can thereupon receive the check in person, or by attorney, in the manner hereafter pointed out. Where the costs are to be paid out of the fund not in Court, or out of the estate which is the subject of litigation, the costs, together with interest thereon, which is generally at the rate of 41. per cent, may be declared to be a charge on the property, and the tenant for life directed to keep down the interest, or a sufficient part of the fund or estate, to satisfy such costs, will be ordered to be mortgaged or sold. A direction to this effect, where none is contained in the decree, may be obtained on motion.10 It is usual, however, to insert a direction for a sale or mortgage of the estate, for the purpose of paying the costs, in the decree or order itself; and an omission to do so may be a ground for a rehearing or appeal.1 Where a tenant for life of an estate is entitled to costs out of the estate, the Court will, as we have seen, direct an immediate sale or mortgage to raise the costs.2 Where the Court appoints one of the solicitors of the Court to be guardian ad litem of an infant, or person of unsound mind, the Court may direct that the costs to be incurred in the performance of the duties of such office shall be borne and paid, either by the parties, or some one or more of the parties, to the suit in which such appointment is made, or out of any fund in Court in which such infant or person of unsound mind may be interested; and may give directions for the repayment or allowance of such costs, as the justice and circumstances of the case may require.3 It has been before stated, that where, after a bill has been dismissed, the plaintiff files another bill for the same purpose against the same defendant or his representative, the Court will stay the proceedings on the new bill till the costs of the former suit have been paid.*. The same course will also be followed by the Court, where the original bill has been dismissed, 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. CH. XXXI. § 6. Costs of solicitor appointed guardian ad litem. Costs of bill dismissed, with liberty to file another. bill of dis covery. A defendant to a bill of discovery is, as we have seen, entitled, Costs of a as of course, to an order for his costs, as soon as he has put in his answer, and the time for excepting has expired." He may, however, be ordered to pay the costs of an unsuccessful opposition to a 1 Burkett v. Spray, 1 R. & M. 113. 2 Ibid.; and ante, p. 1433. 3 Ord. XL. 4; see ante, pp. 163, note (10), 176; and see Ord. XXXV. 23. Ante, p. 796; Updike v. Bartles, 2 Beasley (N. J.), 231; Holbrook v. Cracroft, 5 Ves. 706, note; Pickett v. Loggon, 5 Ves. 702; 2 Hoff. Ch. Pr. 77. Equity, in this particular, adopts the practice at Law. Updike v. Bartles, supra. The rule has its limitations. See Sears v. Jackson, 3 Stockt. (N. J.) 45; Budge v. Budge, 12 Beav. 385; Wild v. Hobson, 2 Ves. & B. 112; Corbett v. Corbett, 16 Ves. 410. For order in such case, see Updike v. Bartles, 2 Beasley (N. J.), 231, 232. 5 Ange v. Truelock, 2 Moll. 41. • Ibid. 7 Ante, p. 810; and see post, Chap. XXXIV. § 2, Bills of Discovery. For form of order, see Seton, 1270, No. 5. 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. J. 416; Hervey v. Talbutt, 1 Jac. & W. 197; Fulton Bank CH. XXXI. § 6. Where bill of discovery is a crosssuit. Costs of bill to perpetuate testimony. by the Crown: ment is for motion for an injunction, to stay the proceedings in an action in aid of the defence to which the bill is filed. If the defendant has filed the bill of discovery in aid of his defence to a bill seeking relief against him, the costs of the bill of discovery will be costs in the original cause: unless the Court otherwise directs.2 The Court will not depart from this rule because the defendant, although successful in the suit, has not availed himself of all the discovery sought by his bill.3 It is irregular to apply for the costs of the bill of discovery, suppressing all mention of its being a cross-suit: even though the original cause has been disposed of before the answer to the crossbill has been put in.* In the case of a bill to perpetuate testimony, the defendant may obtain, on motion of course, or on petition of course at the Rolls, an order for payment of his costs, as soon as the evidence is closed. upon an allegation that he did not examine any witnesses; and where a bill was filed for discovery, as well as to perpetuate testimony, he was held entitled to his costs, so far as the suit was for discovery: although he had examined witnesses in chief." In all suits and proceedings instituted since the 14th August, Costs of suits 1855,7 by or on behalf of the Crown, in respect of the public revenue, the Attorney-General is entitled to recover costs, where Where judg- judgment is for the Crown, in like manner as in proceedings between subject and subject; and such costs are to be paid into the Exchequer; and where judgment is given against the Crown, the defendant is entitled to recover costs, in like manner; and the Treasury is to pay such costs out of any moneys voted by Parliament.8 the Crown. Where against it. 2 Ord. XL. 14; Heming v. Dingwall, 2 Phil. 212; S. C. nom. Dingwall v. Heming., 11 Jur. 177. 3 Robinson v. Wall, 10 Beav. 73. 4 Watts v. Penny, 11 Beav. 435, 437. perpetuate Testimony. For form of order, 7 Date when the 18 & 19 Vic. c. 90, came into operation. The Act is not retrospective. See Attorney-General v. Hanmer, 4 De G. & J. 205; 5 Jur. N. S. 693. 8 18 & 19 Vic. c. 90, §§ 1, 2. For form of order under these sections, see Seton, 351, No. 14. As to costs in petitions of right, see ante, p. 132; and generally as to the costs of the Attorney-General, where informant or defendant, see ante, p. 11 et seq., 139; Morgan & Davey, 238 et seq.; Seton, 351, 363. As to revivor for costs, see post, Chap. XXXIII., Revivor, and Supplement. CHAPTER XXXII. REHEARINGS AND APPEALS. SECTION I.-Generally. WHERE a party feels himself aggrieved by a decree or order of the Court, there are three modes by which he may seek to have it either reversed or varied: namely, 1. By a rehearing in the Court of Chancery; 2. By an appeal to the House of Lords; and 3. By a bill of review.1 A rehearing, by the Court of Appeal in Chancery, of a decree or order made by the Master of the Rolls or a Vice-Chancellor, is in fact an appeal; 2 and as many of the rules applicable to appeals to the House of Lords, apply also to rehearings and appeals in Chancery, the present section will be devoted to the consideration of those rules and principles which are common to both methods of proceeding. The term appeal will, also, where used in the following pages, include rehearings and appeals in Chancery, as well as appeals to the House of Lords, except where a distinction is specifically pointed out. Different methods of reviewing a decision of the Court. Rehearing by Court of Appeal: when considered as an appeal. Except in the instances already mentioned, a decree or order No appeal made by consent cannot be the subject of appeal.* 1 As to bills of review, see post, Chap. XXXIV. § 5. 2 In Kent v. Freehold Land and Brickmaking Company, L. R. 3 Ch. Ap. 493, 495, the Lord Chancellor said that an appeal in Chancery was a rehearing, and that the Court had power to deal with the whole case. As to appeals in charity cases, see post, Chap. XLV., § 2, Statutes relating to Charities; and as to appeals from the County Courts, under 28 & 29 Vic. c. 99, post Chap. XLV., Statutory Jurisdiction (County Courts Act). The Chancellor of the Duchy and County Palatine of Lancaster, and the Lords Justices of the Court of Appeal in Chancery, form the Court of Appeal in Chancery of the County Palatine; and the powers of such Court may be exercised by one only of the Lords Justices and such Chancellor sitting together, or by both the Lords Justices sitting apart from him. 17 & 18 Vic. c. 82, §§ 1, 2; and see ib. §§ 3-10. As to the ju VOL. II. 32 risdiction of the Court of Appeal, on ap- 4 Stewart v. Forbes, 1 M'N. & G. 137; from a decree |