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which costs may

of the estate as a matter of contract, and the Court had no discretion to deprive them of costs except for gross misconduct. There are three ways in which costs awarded by any judg- Modes in ment, decree, or order of the Chancery Division may be taxed: (1) As between party and party; (2) as between solicitor and be taxed. client; and (3) as between solicitor and client but with the addition of other charges and expenses properly incurred, but not strictly costs of action (1).


A direction to tax costs simply means that they are to be taxed as between party and party. In a taxation of this kind the principle is that only those charges will be allowed which were reasonably necessary to enable the party to conduct the litigation. If the costs are directed to be taxed as between solicitor and client," a much more liberal allowance will be made by the taxing master; and a judge of the Chancery Division has jurisdiction in all cases to allow solicitor and client costs to a successful litigant, though it is very rarely and only under most special circumstances that this jurisdiction is exercised (2). Costs, including all charges and expenses properly incurred, are only allowed to persons in a fiduciary position and to mortgagees.

The above rules have been substantially adopted under the new procedure.

rule 1 of the Rules


Costs are dealt with by Order LXV. of the Rules of Supreme Order LXV. Court, 1883, and rule 1 of this Order provides that, subject to the provisions of the Judicature Acts and Rules, the costs of of the and incident to all proceedings in the Supreme Court, including Supreme the administration of estates and trusts, shall be in the discretion 1883. of the Court or judge: Provided that nothing herein contained shall deprive an executor, administrator, trustee, or mortgagee who has not unreasonably instituted or carried on or resisted any proceedings, of any right to costs out of a particular estate or fund to which he would be entitled according to the rules hitherto acted upon in the Chancery Division: Provided also, that, where any action, cause, matter, or issue is tried with a jury, the costs shall follow the event, unless the judge by whom such action, cause, matter, or issue is tried, or the Court, shall, for good cause, otherwise order.

When costs are made costs in the action the party who succeeds at the trial is entitled to them.

() Morgan and Wurtzburg on Costs, p. 3: and see as to Costs, Brett's Leading Cases in Equity,

p. 181, et seq.

(2) See Andrew v. Barnes, 33 Ch. D. 133.

Jurisdiction as to costs.

In a recent case (1), the plaintiff claimed £78 158. for a quarter's rent of premises which had been let furnished. The defendant admitted the claim, but counter-claimed for an amount larger than the plaintiff's claim as damages, on account of the unsanitary condition of the premises.

The action was tried by a jury, who found for the defendant on the counter-claim with £17 68. damages. The judge ordered that judgment should be entered for the plaintiff for the amount of the claim, with costs down to the date of the counter-claim, and judgment for the defendant for £17 168. on the counterclaim, with the costs of the counter-claim and all costs since the counter-claim, including the costs of the trial. The Court of Appeal decided that the judge had, by his order, prevented the costs from "following the event;" that he had no jurisdiction to do this except for good cause shewn, and that as there was no good cause shewn in the present case, his decision must be reversed.

It will be seen, therefore, that the great distinction made is between actions tried with a jury and actions tried without a jury. In the former case the costs follow the event, unless the judge otherwise orders. In the latter, they are in the discretion of the Court, subject to the above proviso in favour of trustees and others.

The question of the judge's jurisdiction to deprive a plaintiff of his costs was made the subject of careful consideration in a case which came before the House of Lords in 1889 (2). In that case, an action was brought against a railway company for damages caused by their negligence, the plaintiff claimed £3000, and the jury awarded him £50. The defendants thereupon applied to the judge to deprive the plaintiff of his costs. The judge declined to exercise his discretion, on the ground that later decisions of the Court of Appeal "had made the principle of the jurisdiction wholly unintelligible to him," but some weeks after he heard both sides, and being of opinion that the plaintiff had "supported an extravagant, and extortionate claim, by fraudulent statements and dishonest acts, and had endeavoured to substantiate it before the jury by evidence which they very properly disbelieved," made an order depriving the plaintiff of his costs. It was contended that the judge's powers were exhausted by what had occurred, that he was in fact functus

(1) Wight v. Shaw, 19 Q. B. D. 396; Shrapnel v. Laing, 20 Q. B. D. 334; Amon v. Bobbett, 22 Q. E. D. 543.

(2) Per Lords Watson, Bramwell, and Herschell in Huxley v. West London Extension Railway Co., L. R. 14 App. Cas. 27.

tion as to

803 officio, and had no jurisdiction to make the order. The House Jurisdicof Lords decided, affirming the decision of the Court of Appeal, that the judge had jurisdiction, and that the order was rightly made. The following principles were laid down in this case:

The concluding words of the rule as to costs which give the Court a discretion as to costs "for good cause" in trials with a jury, embrace everything for which the party is responsible, connected with the institution or conduct of the suit, and calculated to occasion unnecessary litigation and expense. So long as the judge or Court deal with considerations of that kind, the sufficiency or insufficiency of these considerations as affording a reason for disallowing costs are matters of which they are constituted sole arbiters; they are acting within their jurisdiction, and their decisions are final and conclusive. On the other hand, if they give effect to considerations which do not constitute "good cause" within the meaning of the rule, they exceed the limits of their jurisdiction.

Finally, it must be noticed that it is provided by the Supreme Court of Judicature Act, 1890 (1), which came into operation on the 24th of October, 1890, that "subject to the Supreme Court of Judicature Acts, and the rules of Court made thereunder, and to the express provisions of any Statute, whether passed before or after the commencement of this Act, the costs of and incident to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the Court or judge, and the Court or judge shall have full power to determine by whom and to what extent such costs are to be paid."

(1) 53 & 54 Vict. c. 44.


Business of the Divisional Courts.



The attention of the reader may now be directed for a short time to other portions of the business entrusted to the judges of the High Court, which remain still to be noticed.

The Judicature Act, 1873 (1), provides that such causes and matters as are not proper to be heard by a single judge shall be heard by Divisional Courts of the High Court of Justice which shall for that purpose exercise all or any part of the jurisdiction of the High Court. It further provides that any number of such Divisional Courts may sit at the same time, and that every judge of the High Court shall be qualified and empowered to sit in any Divisional Court. The president of each Divisional Court is the senior Judge of those present (2).

The proceedings and matters which are now to be heard and determined before Divisional Courts, are as follows (3):

(a) Proceedings on the Crown side of the Queen's Bench

(b) Appeals from revising-barristers and proceedings relating
to election petitions, parliamentary and municipal.
(c) Appeals under the County Court Act, 1888.
(d) Proceedings on the revenue side of the Queen's Bench

(e) Proceedings directed by any Act of Parliament to be
taken before the Court, and in which the decision of
the Court is final.

(1) 36 & 37 Vict. c. 66, s. 40, as amended.

(2) See as to the number of the judges constituting a Divisional Court, the Appellate Jurisdiction Act (39 & 40 Vict. c. 59), s. 17; Judicature Act, 1884 (47 & 48 Vict. c. 61), s. 4, and as for motions for new trials, ante, p. 798.

(3) R. S. C., 1883, Order 59, as altered by County Courts Act, 1888,

and Judicature Act, 1890. The rules provide that nothing herein contained shall be construed so as to take away or limit the power of a single judge to hear and determine any such proceedings or matters in any case in which he has heretofore had power to do so or so as to require any interlocutory proceeding therein heretofore taken before a single judge to be taken before a Divisional Court.

(f) Cases of habeas corpus in which a Judge directs that a rule nisi for the writ or the writ be made returnable before a Divisional Court.

(9) Special cases where all parties agree that the same should be heard before a Divisional Court.

(h) Appeals from Chambers in the Queen's Bench Division. A learned writer (1) divides the extraordinary remedies by means of which wrongs may in certain cases be redressed, or their continuance prevented, into three heads :

I. By the act of the party injured.


II. By the mere operation of law independently of the ordinary mode of procedure.

III. By the exercise of extraordinary judicial powers (2). The principal extraordinary remedies by the exercise of judicial powers, which it will be desirable here to notice, are:

1. The writ of habeas corpus; 2. The prerogative writ of mandamus; 3. The writ of prohibition; 4. Quo warranto information; 5. Writ of certiorari; 6. Petition of right.


The various forms of writ of habeas corpus are as follows (3) :— 1. Habeas corpus ad subjiciendum. This writ is used for corpus. protecting the liberty of the subject by examining into the legality of commitments for criminal or supposed criminal matters, or of any other forcible detention, including impressments and also for admitting to bail prisoners legally committed.

2. Habeas corpus ad testificandum, for bringing up prisoners to give evidence.

3. Habeas corpus ad respondendum, for bringing up prisoners to be examined or tried on criminal charges.

4. Habeas corpus ad deliberandum and recipias, for removing prisoners from one custody to another for the purpose of trial; and

5. Habeas corpus to bring in the body of a defendant on a return of cepi corpus.

In order that liberty should be

(1) Broom's Commentaries, 8th ed., p. 200.

(2) Under the first head Mr. Broom considers the right of self-defence, which within due bounds may be exercised in defence not only of person but also of property, the right of reception which is sometimes given when a man has been wrongfully deprived of his goods. Entry on his own land by the rightful owner when dispossessed, as to which

secure it is necessary, as

see Beddall v. Maitland, 17 Ch. D.
174; Edwick v. Hawkes, 18 Ch. D.
199. Under the second head the
right of retainer to which a creditor
is entitled when he is made executor
or administrator to his debtor and
the right of remitter. See further on
these points: Broom's Commentaries,
8th ed. p. 201.

(3) See Short and Mellor's Practice
of the Crown Office, pp. 335, et seq.

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