With an allowance of mileage, double the amount For execution of each warrant in a foreign district .. 0 10 0 060 3s. 6d. of the above sum is to be paid to the Superintending sale, whether by auction or private con- 0 15 0 076 N.B.-Where the amount or value of the subject-matter of the suit or proceeding is not disclosed by the plaint or petition, it shall be taken not to exceed 1007., and the fees charged accordingly. If, however, the judge shall subsequently certify that the amount or value of the subject-matter does exceed 1007., the difference between the fees up to that time taken and those that would have been taken had it exceeded 1007. may then be taken. PART IV. CHAP. XI. § 2.-GENERAL RULES AS TO COSTS. The giving of costs in equity is entirely discretionary. "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 (b); but that it will, in awarding costs, take into consideration the circumstances 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 (c); 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” (d). Costs out of the Estate or Fund.]—“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” (e). (b) Costs in the courts of common law, in general, follow the event, not by reason of any "inflexible rule," but by force of express statute. See Gray on Costs. As to costs on appeal see ante, p. 115. Costs may be given where the cause is struck out for want of jurisdiction. See 30 & 31 Vict. c. 142, s. 14, ante, Vol. I. p. 70. (c) Per Lord Cranworth in Clarke v. Hart, 6 H. L. Cas. 633. (d) Daniell's Chancery Practice, 5th edit. pp. 1238, 1239. In the county courts the judge in exercising (e) Daniell's Chancery Practice, PART IV. CHAP. XI. Costs as between "Party and Party," and "Solicitor and Client."]-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 characters 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 (ƒ). The "scale of costs and charges to be paid to counsel and attornies in equitable matters," under the County Courts Act, does not, however, appear to contemplate any system of taxation between "solicitor and client." The scale, however, expressly directs that "where in the course of a cause or matter a party suing or sued in a fiduciary or representative character necessarily incurs costs not allowed upon taxation between party and party, the registrar shall apply to the judge to allow such sums as he may think fit out of any funds in court applicable to that purpose" (g). Costs, Charges and Expenses in the case of Trustees.]—"It frequently happens that in suits to which trustees or personal representatives are parties, either as plaintiffs or defendants, and which do not involve any account, they have incurred expenses which it is very right they should be reimbursed, but which do not fall under the denomination of costs of the suit, even when directed to be taxed as between solicitor and client. Of this nature are cases laid before counsel, for their opinion preparatory to the institution of the suit, and many other charges of that description, to which, when there is a decree directing an account, a trustee would be considered entitled under the head of just allowances, but which, when there is no decree for an account, and consequently no opportunity of claiming just allowances, a trustee would be in danger of losing; especially in cases where the suit does not involve property out of which they can be retained, or dispose of the whole of the trust fund. The court will, therefore, in such cases, upon the statement that such charges have been incurred, extend the order for the taxation of costs, as between solicitor and client, to the costs, charges and expenses properly incurred by the trustee. Under such a direction as this, the trustee may obtain all such expenses as he has properly incurred, relating to the trust property, in or in connection with the suit, although they are not properly costs in the cause" (h). (f) Daniell's Chancery Practice, 5th edit. p. 1239. As an illustration of the fixed rules governing the courts of equity as to costs between "soliciter and client," see Turner v. Col lins, 40 L. J. (N. S.) Ch. 614. p. 123. (h) Daniell's Chancery Practice, 5th edit. p. 1304. §3.-SCALE OF Costs of Counsel and Attornies. The act giving equitable jurisdiction to the county courts empowered the county court judges, who framed rules and orders for the practice of the court, also to frame a scale of costs and charges to be paid to counsel and attornies (i). The following is the scale of costs and charges now in A Scale of Costs and Charges to be paid to Counsel and PART IV. CHAP. XI. Where judgment is deferred, attending court to hear it. 0 6 (i) See "The County Courts Act, 1865" (28 & 29 Vict. c. 99), s. 17, ante, Vol. I. p. 69. See also "The County Courts Act, 1867" (30 & 31 220 068 26 20 Vict. c. 142), scct. 15, ante, Vol. I. (k) This scale came into operation Attorney's travelling expenses to attend court, one way, If above 20 miles, actual cost. Where in the opinion of the registrar he cannot return All costs for letters, and for searches for certificates of 1 0 0 15 0 3 6 0 15 1000 034 1000 89000 1546 0 1 0 010 1 11 6 1 11 6 0 500 70 04 0 0 60 008008 0 3 4 0 34 0 6 8 0 6 8 0 0 8 008 0 340 34 0 680 13 4 |