such reference is made shall be at liberty to request the proper officer of any other Court having such an officer, to assist him in taxing and settling any part of such bill, and such officer so requested shall thereupon proceed to tax and settle the same, and shall have the same powers, and may receive the same fees in respect thereof, as upon a reference to him by the Court of which he is such officer, and shall return the same, with his opinion thereon, to the officer who shall have so requested him to tax and settle the same, and the officer to whom such reference is made shall not be paid any fee for that portion of the bill which shall have been so settled by the officer of such other Court at his request."

Section 43 enacts, "That all applications made under this Act to refer any such bill as aforesaid to be taxed and settled, and for the delivering up of deeds, documents, and papers shall be made in the matter of such attorney or solicitor, and that upon the taxation and settlement of any such bill the certificate of the officer by whom such bill shall be taxed shall (unless set aside or altered by order, decree, or rule of court) be final and conclusive as to the amount thereof, and the payment of the amount certified to be due and directed to be paid may be enforced according to the course of the Court in which such reference shall be made; and in case such reference shall be made in any Court of Common Law, it shall be lawful for such Court, or any Judge thereof, to order judgment to be entered up for such amount with costs, unless the retainer shall be disputed, or to make such other order thereon as such Court or Judge shall deem proper."

Where an attorney has obtained an order under the 37th section for the taxation of his bill, and which order has been made a rule of Court, and the costs are taxed and the amount certified by the Master, the attorney cannot, under the 43rd section, enforce the payment by attachment, there being no order to pay, disobeyed by the party. The proper course is to move for an order upon the party to pay the amount of the allocatur or certificate, and then to proceed by attachment, if that order be disobeyed (a), or by issuing execution

(a) In re Woodhouse, 2 C. B. Rep. 290.

upon the order under the Stat. 1 & 2 Vict. c. 110, s. 18 (a). Power, moreover, is expressly given by the 43rd section to any Court of Common Law, or a Judge thereof, to order judgment to be entered up for the amount certified and directed to be paid, together with costs.

In pursuance of a Judge's order an attorney delivered his bill of costs, and upon the application of the client an order was made referring the bill to the Master to be taxed, without prejudice to the defendant disputing the retainer, and restraining the attorney from commencing or prosecuting any action or suit touching his demand pending the reference. Upon the taxation the client disputed the retainer; but the Master decided, both parties consenting to his entertaining the question, that the retainer was made out to his satisfaction, and he gave his allocatur for the amount due, including the costs of taxation. The order referring the bill for taxation having been made a rule of Court, a rule for entering up judgment under the 43rd section was made absolute, the Court deciding that although the retainer was disputed, the question had been conclusively settled by the decision of the Master, and the Court having power therefore to order judgment to be entered up, there were no circumstances shown why it should, in the exercise of its discretion, decline making the order (b).

CHAPTER LXV.

OF ACTIONS TO RECOVER COSTS AS DAMAGES.

BESIDES the action by an attorney or solicitor for the recovery of his bill of costs, there is a certain class of cases requiring notice in which questions of considerable difficulty have arisen as to the right to recover, as damages, costs incurred by the plaintiffs on account, or by reason, of some liability over, for acts done by the defendants.

(a) See ante, p. 518.

(b) In re Lowless & Son, 6 C. B.

Rep. 123; 5 D. & L. 793.

These cases arise principally under one or other of the following circumstances:

1. Where costs have been paid by one of two or more persons jointly liable to an attorney.

2. Where a surety has been forced to pay costs on account of his principal.

3. Where the plaintiff or defendant, as the case may be, has been indemnified in respect of costs incurred in bringing or defending actions.

4. Where costs having been incurred, it is sought to recover them over from a third person, by virtue of an express or implied covenant or contract of indemnity.

5. Where the plaintiff has been put to costs and charges in consequence of some wrongful act of the defendant.

1. There are some cases where a party may sue another for contribution in respect of costs.

Thus, if there be several defendants in an action, and they agree to employ an attorney to manage the defence on their joint responsibility, and one of them pays the attorney's bill of costs, he may sue the others for contribution, even although the defendants were partners, provided it can be shown that the contract with the attorney was made independently of their relation as partners (a); but if the defendants were partners, and the contract or payment was made in that character, contribution could not be claimed in an action at law.

So, also, if several contractors (not partners) are jointly sued, and judgment is recovered against them, and one pays the damages and costs, he may recover contribution from the others; and where the plaintiff and defendant were two of a committee appointed at a vestry meeting for the purpose of prosecuting nuisances on the waste lands and highways of the parish, which committee appointed an attorney, who prosecuted and obtained a verdict, and afterwards sued the plaintiff for his bill of costs, which action was referred to arbitration, and a sum and costs of the action awarded against the plaintiff (the defendant in that action), it was held that the plaintiff was en

(a) Edger v. Knapp, 5 M, & G. 753.

titled to contribution from his co-committeeman (a). The case in which this was decided is, however, not satisfactory as a decision that the plaintiff was entitled to contribution in respect of the costs.

Differences and disputes having arisen between the trustees and managers of a chapel as to the conduct of B., one of the trustees, and an information and bill having been filed in the Court of Chancery, at the relation of all the trustees (except B.) against B. and another person, praying an account against B. in respect of such part of the trust funds as had come into his hands, and B. having, by his answer, charged the relators with breach of trust in their management of the trust fund, an order was made by the Vice-Chancellor, with the consent of all parties, that the cause and all matters in difference should be referred to arbitration, the arbitrator to have full authority over the costs of the suit and reference. The order expressly provided that the death of any of the parties should not operate as a revocation of the arbitrator's authority, but that his award should be delivered to the personal representatives of the deceased party or parties. During the reference, one of the relators, being a party thereto, died; and afterwards the arbitrator made his award, and thereby directed that the costs of the reference should be borne and paid by the parties by whom they were incurred. The plaintiff, who was one of the relators, paid the solicitor who had been retained for them in the conduct of the reference his bill of costs, and brought an action for money paid against the executors of the deceased relator for his proportion of the costs incurred after his death, including the costs of the award. It was held, that the executors were liable in such action for their testator's proportion of the costs of the reference incurred after his death, and also of the costs of the award (b). The Court of Exchequer, in delivering judgment in this case, observed, that "it cannot perhaps be stated as a universal proposition, that in all cases where two or more jointly employ a third person there is an implied undertaking in all to contribute rateably, (a) Holmes v. Williamson, 6 M. & (b) Prior v. Hembrow, 8 M. & W. Sel. 158. 873.

inter se, so as to bind the executors of a deceased co-contractor. Every such case must stand on its own ground. Here the joint employment of the solicitor was for the equal and several benefit of all; those who might die were interested in the reference as well as those who survived." And further, that this case appeared to the Court "to stand on the same footing as that of several persons jointly contracting for a chattel to be made or procured for the common benefit of all -the building of a ship, for instance, or the furnishing of a house, and as to which the executors of any party dying before the work is completed are, by agreement, to stand in the place of the party dying. In such a case, though the legal remedy of the party employed would be solely against the survivors, yet the law would certainly imply a contract on the part of the deceased contractor that his executors should pay their proportion of the price of the article to be furnished."

2. In an action by a surety against his principal, he may under the implied promise of indemnity recover, it seems, any costs necessarily or reasonably incurred by him in paying the creditor; but one surety cannot recover from a co-surety any part of the costs incurred by the former in attempting to defend, or in settling legal proceedings by the creditor against him to recover the debt, unless the co-surety has expressly authorized the incurring of such costs (a); because the implied promise by one surety to another to repay a rateable proportion of the debt, if one be called upon to pay, and does pay the whole, does not extend to the costs.

But where the plaintiff and defendant had executed as sureties a warrant of attorney, given as a collateral security for a sum of money advanced on mortgage to the principals, and on default being made by the principals, judgment was entered up on the warrant of attorney, and execution issued against the plaintiff, it was held that he was entitled to recover from the defendant as his co-surety, in an action for money paid, a moiety of the costs of such execution (b). This case however does not, on examination, prove an exception to the (a) Knight v. Hughes, M. & M. 247; (b) Kemp v. Finden, 12 M. & W.