In the allowance of costs of evidence, a principle has been established that no costs shall be allowed between party and party, for expenses incurred in informing the minds of witnesses and supplying them with data whereon to ground an opinion.

Thus, the costs of making experiments by scientific men (a), of surveying and taking levels in order to qualify witnesses to speak to a wrongful act done (b), or of the journeys or expenses of inquiries to prove that plans and surveys were badly done in answer to an action by the surveyor (c), cannot be allowed. So, therefore, in an action on the case for an injury to a watercourse by the deposit of noxious materials, it was held that the Master rightly disallowed costs incurred by the plaintiff in obtaining specimens of earths and plants from the land for the purposes of analyzation and production at the trial (d). So, also, the expenses of witnesses employed by the plaintiff to look for the defendant, in order to identify him as the party who had committed the wrong of which the plaintiff complains, cannot be allowed (e).

But the expenses of plans used for the information of the Court may be allowed (ƒ), and the directions of Hilary Term, 1853, to the Taxing Masters provide for the amount (g).

These directions to the Masters also provide, that "In order to diminish as much as possible the costs arising from the copying of documents to accompany the briefs of counsel, the Masters are to allow only the copying of such documents as they may consider necessary for the instruction of counsel, or for use at the trial" (h).

Under this rule, as before, it is left to the Master's discretion. Where, in an action for malicious prosecution, the Master had allowed the defendant three copies of short-hand

(a) Severn v. Olive, 2 Br. & Bing. 72; 6 Moore, 235, S. C.

(b) Ormerod v. Thompson, 16 M. & W. 860; May v. Selby, 4 Scott, N. R. 727; 4 M. & Gr. 142, S. C.

(c) Gravat v. Attwood, 21 L. J. (N. S.), Q. B. 215.

(d) Lamb v. Simpson, 4 Exch. Rep. 85; 18 L. J. (N. S.), Exch. 377.

(e) Small v. Batho, 21 L. J. (N. S.), Q. B. 254.

(f) Holmes v. Holmes, 2 Bing. 75.
(g) See Appendix.
(h) R. 2.

writer's notes of the evidence, on the prosecution out of which the action arose, in deference to the certificate of counsel that they were necessary, the Court ordered the taxation to be reviewed, Mr. Baron Parke observing, that "he ought to have exercised his own discretion in the matter. Cases may well be conceived, in which the evidence given on a former trial would be so important that each of the counsel ought to be supplied with a copy of it; on the other hand, there may be cases in which one copy, for the purpose of reference, would be quite sufficient. The Master ought to exercise his discretion upon the whole case; it is impossible to lay down any rule of general application as to charges of this kind" (a).

No fee to counsel is allowed on writs of trial, except on trials before the Judge of the Sheriff's Court of London, or of the Courts of Record, where attorneys are not allowed to practise, and then one guinea only (b).

The Masters have discretion in all cases to allow, as between party and party, the fees of counsel or special pleader, for drawing pleadings or other proceedings, whether special or otherwise, and advising (c).

It is discretionary with the Master to allow two or three briefs to counsel, and their fees, according to the nature of the case, and there is no absolute rule that only two counsel shall be allowed unless a certain number of witnesses are examined. No doubt the number of witnesses must form a very material, and indeed the principal, ingredient for the consideration of the Master, because it is in the examination of witnesses that a division of the labour amongst counsel is most likely to occur; but he is not bound by any general rule. It is easy to suppose a very trivial case with a great number of witnesses, and a very difficult one with but very few (d).

(a) May v. Tarn, 12 M. & W. 730; and see Stewart v. Steele, 11 L. J. (N. S.), C. P. 155.

(b) Directions of Hil. T., 1853, No.

3; see Appendix.

(e) Ibid., No. 4; see Appendix. (d) Per Curiam, Sharp v. Ashby, 12 M. & W.732.

SECT. 4. Review of Taxation.

The Court, or a Judge, will not, before taxation of costs, make an order as to the principle on which they are to be taxed, if objection be taken to that course (a), but they will order the taxation to be reviewed by the Master, upon application by the party dissatisfied, where the taxation has been made upon a wrong principle. In general, however, the Master is the sole judge as to what witnesses shall be allowed on taxation, and as to the mode of taxing costs; and the discretion used by him in taxation will not be brought into review before the Court as a matter of course (b). But, where the Master does not attempt to exercise a discretion, the Court will direct him to review his taxation. Thus, where the Master, in taxing the costs of an action, having allowed the full amount claimed as the costs of executing a commission for the examination of witnesses in India, saying he had no means of forming a judgment, and therefore declined to exercise any discretion as to the propriety of the charges, the taxation was ordered to be reviewed; the Court observing that the Master should look at the bills, and exercise his discretion in the best way he could (c).

The Court will not order a taxation to be reviewed where the amount alleged to have been improperly allowed is less than forty shillings, nor (formerly) after a transcript of the record had gone to a Court of Error (d).

If no objection be made before the Master to the amount of particular charges, but only to the Master's right to allow them at all, the Court will not order the taxation to be reviewed merely on the ground that the amount was improper (e).

Where the Master having, upon the taxation of the plaintiff's costs, been induced by false affidavits to allow a large

(a) Head v. Baldrey, 8 A. & E. 605. (b) Chitty's Archbold's Practice, 8th edit. vol. 2, p. 1395.

(c) Stewart v. Steele, 4 C. B. Rep.

460.

(d) Newton v. Boodle, 4 C. B. 359. (e) See Kent v. The Great Western Railway Company, 3 C. B. Rep. 714.

sum as the fees and expenses to commissioners named in a commission for the examination of witnesses, which sum, it was suggested, had not been paid; the Court referred it back to the Master, to inquire, by such means as he should think fit, what sums had actually been paid, and to review the taxation if necessary (a).

Where it appeared that the costs of certain witnesses, sworn in an affidavit of increase to have been paid, were allowed in the Master's allocatur, but had not in point of fact been paid till after the allocatur was given, the Court ordered the plaintiff to refund such sums to the defendant, although no intention to defraud was imputed to the plaintiff (b).

SECT. 5. Costs of Taxation.

The costs of taxation in ordinary cases, between attorney and client, are regulated by the Stat. 6 & 7 Vict. c. 73, s. 37, as will hereafter appear (c). At present we only speak of costs of taxation between party and party.

The general rule is, that where a party is entitled to the costs of an action, of issues, of a motion, or of any other proceeding, those costs include the costs of taxing them, and the Master allows such costs of taxation in the bill he taxes; and it is believed there was no exception to this rule until the year 1832, when (by a rule now annulled) it first became necessary to indorse on the writ the amount of debt and costs. The two exceptions now existing are the following:-By the 8th section of the Common Law Procedure Act, 15 & 16 Vict. c. 76, on writs for debts, the amount of debt, and also the amount which the plaintiff's attorney claims for costs of the writ, copy, and service, and attendance to receive debt and costs, must be indorsed; and if the defendant pays the amount within four days proceedings are stayed; but the defendant may after paying have the costs taxed, and if more than a sixth is disallowed the plaintiff's attorney is rendered liable (a) Barnes v. Attwood, 5 C. B. Rep. 164.

(b) Trent v. Harrison, 2 D. & L.

941.

(c) See post, p. 528.

by the Statute to pay the costs of taxation. The other exception was introduced by the 27th section of the same Act, and the first of the Practice Rules of Hilary Term, 1853, under which the plaintiff's attorney, in those cases in which the writ is specially indorsed, makes an indorsement on the writ with reference to his claim for costs of the action, if judgment goes by default; and the effect of the rule is, that if the plaintiff's attorney improperly claims more than the fixed sum appropriate to the case, or even if entitled to more, if he makes out a bill which is reduced by one sixth on taxation, he must pay the costs of taxation.

CHAPTER LXI.

OF SETTING-OFF AND DEDUCTING COSTS OF ISSUES.

HAVING, in the last Chapter, considered the means by which the amount of costs to which a party is entitled on a judg ment, or other proceeding in a cause, is ascertained, the next step is to ascertain how the payment of that amount is enforced. Before, however, treating of the recovery of costs by means of the process of the Court, it is necessary to allude concisely to the settlement of adverse claims for costs, by means of set-off or deduction; and, in the first place, of those arising from issues having been found for each party.

In an earlier part of this work the right to costs of issues has been fully discussed (a). We have now to suppose, that in accordance with the rules there stated, that some issues have been found, and subsequently taxed, for the party who has lost the general costs of the cause.

Before the Rule 1, Hilary Term, 2 Will. IV. s. 74, where a plaintiff recovered a verdict on any part of his declaration for

(a) See ante, Chapter II.