RANKIN v. MCKENZIE. (IN EQUITY.) Taxation.-Fees in Master's Office.-Counsel Fees. In a proper case an appeal from the master will be allowed upon the quùntum of counsel fees. Two fees of $100, each reduced to two of $50 each. The master may allow upon proceedings in his office one fee of $20, instead of the usual $1 or $2 per hour; but has no power to exceed that amount. C. P. Wilson for plaintiff. E. H. Morphy for R. Logan. J. H. D. Munson for creditors. [9th April, 1886.] TAYLOR, J.-On the reference under an administration decree Robert Logan sought to prove a claim as a creditor of the intestate. This claim was disallowed by the master and an appeal against the master's finding was dismissed with costs. Under the order then made and another order directing the claimant to pay the costs occasioned by his making a claim which failed, the costs of the plaintiff, the administrator and of a solicitor representing the general creditors have been taxed. Against this taxation the claimant appeals, alleging that the amount allowed the plaintiff and the creditors' solicitor, $75 each, on the enquiry before the master is excessive, and that the counsel fees on the appeal taxed to the same parties, $100 each, are also excessive. In answer to the appeal it is urged that the fees taxed are by no means exorbitant considering the importance and difficulty of the questions connected with the claim and raised by the appeal. It is further contended that the objection taken is not that the master has erred in principle, but is only to the quantum of the fees allowed and that the court will not on such an objection interfere with the master's discretion. No doubt there are numerous authorities to that effect. In Burton v. Burton, 29 L. J. Ex. 291, C. B. Pollock said, the court never interferes with the master's taxation except to correct an error of principle into which he may have fallen. So in Cousens v. Cousens, L. R. 7 Chan. 48., L. J. James said "the quantum of fees ought never to have been brought here. The taxing master considered that the fees were not such as to call for his interference, and we shall not interfere with his discretion." In other cases, however, the courts, although expressing an extreme unwillingness to interfere with this discretion have held that they will enquire into whether the taxing master has exercised his discretion properly or not. In Betts v. Cleaver, L. R. 7 Chan. 513, the learned judges who decided Cousens v. Cousens, expressed the opinion that in that case they had gone too far. In Hill v. Peel, L. R. 5 C. P. at p. 180, the Court of Common Pleas held that a very wide discretion must necessarily be left to the taxing master, which must be exercised by him after a careful consideration of the particular circumstances of each case, and where, after properly considering the matter he has arrived at a decision, it lies upon those who impeach his decision to satisfy the court that he is wrong. Where a principle is involved the court will always entertain the question and if necessary give directions to the master, but where it is a question of whether he has exercised his discretion properly, or it is only a question as to the amount to be allowed the court is generally unwilling to interfere with his judgment unless there are very strong grounds to show that he is wrong in the judgment which he has formed. In Smith v. Baker, 28 L. T. N. S. 669, certain counsel fees were disallowed and on an appeal against the disallowance, C.J. Bovill said the court should not interfere unless satisfied that the master has exercised his discretion wrongly. In Hargreaves v. Scott, 4 C. P. Div., at p. 24, the expression used by Grove, J., is "what we have to enquire into is whether or not the discretion of the master has been exercised reasonably." Gilbert v. Guignon, 21 W. R. 745, was a case in which the taxing master made a considerable reduction in the counsel fees allowed to some defendants against whom the bill was dismissed. On an appeal from the taxation counsel for the plaintiff urged that the question raised was merely one of quantum, on which the court always allows the opinion of the taxing master to be final and follows it, but Lord Romilly, M.R., allowed the appeal saying that he remembered the case which had been argued before him and he did not think the fees marked too large. In Smith v. Buller, L. R. 19 Eq. 473, V. C. Malins said, "although the court is reluctant to go into questions of detail, it will do so in a proper case, and even in a question of quantum will do so, where there has been a charge of a very exorbitant character." What would be considered charges of a very exorbitant character, he did not say, but in that case, where the taxing master had allowed £15.15 to a scientific witness for being engaged two days reading papers, giving instructions for and settling his affidavit, the learned judge allowed £7.7 a day. And where £10.10 a day had been allowed counsel on the cross-examination of certain witnesses he expressed the opinion that a reasonable fee would be £5.5, as however, the case was a heavy one he allowed the fee taxed to stand for the first day, reducing the fee for any subsequent days to £7.7. In the present case the fees taxed on the appeal are $100 to each counsel. As it was not argued before me I felt some difficulty in dealing with the matter and therefore spoke to the learned judge by whom the appeal was heard. His opinion is, that had one half the fee been taxed, it would still be a large fee in an appeal involving the questions raised and discussed here. As to the allowance in connection with the proceedings in the master's office, the tariff, under the head of attendances, fixes the proper fee at $1 per hour, to be increased in the discretion of the master tc $2, and gives as an alternative, that in important matters, requiring the attendance of counsel, the master may, in lieu of the fees for attendance, allow a counsel fee not to exceed $10. Under the heading of counsel and solicitors, the tariff provides that on special and important points and matters requiring the attendance of counsel, the master may in lieu of fees for attendance, allow a counsel fee when counsel attend, not to exceed $20. The reference here occupied fourteen hours so the fees at $2 an hour would be $28. Taking the tariff allowance under the head of counsel and solicitors to mean, not $20 for the reference, but $20 a day, my opinion being, however, that it means one fee of $20, the proper fee would be for say two and a half days $50. I allow the fee for attendance in the master's office at that because counsel for the appellant said that had that sum been taxed he would not have objected. The counsel fees should also be reduced to $50 each. The appellant is entitled to the costs of the appeal. In concluding this judgment it may be remarked, that hitherto counsel fees and legal charges generally, have been allowed in this Province on a more liberal scale than in Ontario and the other older Provinces, the exceptional cost of maintaining offices and of living here, being urged as a reason why they should be so. That reason has, to a very large extent at least, ceased to exist, and it is now high time that, if a popular expression may be allowed, "boom ideas," about counsel fees, should and must be discarded as they have been about everything else. CONWAY v. SCOTT. Replevin.—Action on bond.—Original action still pending.- To an action upon a replevin bond for failure to prosecute" with effect," the defendant pleaded that the original action was still pending and undetermined. Replication," that the suit referred to in the bond mentioned in the declaration herein was at and before the commencement of this action determined in the manner following, that is to say, The said suit was entered for trial at the Sittings of Assize and Nisi Prius of this Court in and for the Eastern Judicial District of the Province of Manitoba, beginning on the fourth day of March in the year one thousand eight hundred and eighty-four, and was on the eighteenth day of June in the said year brought on for trial before Mr. Justice Taylor, the learned Judge then holding the said Sittings, and the said learned Judge thereupon decided and determined that the said Court had no jurisdiction over the said suit, and struck the said suit out of the list of suits then and there entered for trial at the said Sittings, and declined to give judgment therein." Demurrer to the replication. Held, That the replication was bad, there being nothing to show that the suit was determined by the adjudication of the Court before which it was in due course brought, or that such court or the court in which it was commenced had no jurisdiction to entertain the suit. The Court of Assize and Nisi Prius is a court distinct from the Court of Queen's Bench. J. H. D. Munson for plaintiff. F. McKenzie, Q. C., for defendant. [30th June, 1886.] KILLAM, J.-The replication merely shows that the learned judge, before whom the cause was brought on for trial at the sittings of Assize and Nisi Prius, decided and determined that the court had no jurisdiction over the suit, and struck it out of the list of suits then and there entered for trial at said sittings, and declined to give judgment therein. There is nothing to show in what court the suit was commenced, or why, or how, the Court of Assize had any jurisdiction to make the final disposition. of the cause. I take it that the allegation is merely that it was determined at the Court of Assize that there was no jurisdiction for the trial of the cause at the Court of Assize, or that particular sitting. The replication speaks of the suit as being "entered for trial at the sitting of Assize and Nisi Prius of this Court in and for the Eastern Judicial District," beginning on a certain day. This expression is incorrect. The Court of Assize and Nisi Prius is a separate and distinct court. If the subsequent allegation that it was "determined that the said court had no jurisdiction over the said suit," is to be construed as referring to the Court of Queen's Bench, and not to the Court of Assize and Nisi Prius, the replication still does not show that it was adjudged that the court in which the suit was commenced had no jurisdiction over the cause of action, as in the case of Welsh v. O'Brien, 28 U. C. Q. B. 405. The declaration shows that, for some reason not stated, the defendants chose to give the bond set out to Colin Inkster, Sheriff of the Eastern Judicial District. There is no allegation that it was given to him solely by virtue of his office of sheriff. The words "Sheriff of the Eastern Judicial District" are used in the bond and in the declaration merely as words of description, they cannot by any inference serve the purpose of an allegation that the suit mentioned in the bond was instituted in |