sion.

For cases under the former practice where the bill was cery Divieither dismissed or taken off the file, in either case with costs against the solicitor, see Wright v. Castle, 3 Mer. 12; Allen v. Bone, 4 Beav. 493; Wade v. Stanley, 1 J. & W. 674; Martindale v. Lawson, C. P. C. 83; Jerdein v. Bright, 10 W. R. 380. And see also Davies v. Davies, 18 L. T. 701; Robson v. Dodds (2), 8 Eq. 301; 38 L. J. Ch. 647; 17 W. R. 782; 20 L. T. 968; Palmer v. Walesby, 3 Ch. 732; 16 W. R. 924, where a bill filed by a next. friend in the name of a supposed lunatic, who was really of sound mind, was ordered to be taken off the file, the next friend paying all the costs; Fenton v. Queen's Ferry Co., 7 Eq. 267; Thomas v. Finlayson, 19 W. R. 255.

If the suit is dismissed with costs before the plaintiff interposes, he cannot be relieved from his liability to the defendants (Dundas v. Dutens, 1 Ves. Junr. 196; 2 Cox, 235; Hood v. Phillips, 6 Beav. 176; Tarbuck v. Woodcock, ibid. 581); but the plaintiff may afterwards recover his costs, charges, and expenses from the solicitor, either by petition (Norton v. Cooper, 3 Sm. & G. 375), or motion (Malins v. Greenway, 10 Beav. 564; Hood v. Phillips). In Jerdein v. Bright, 10 W. R. 380, the bill was filed under an authority which had, in the opinion of the Court, been improperly obtained from the plaintiff, and V. C. Wood made the same order as if the bill had been filed without authority; but he refused the plaintiff his costs of the application, because he raised an issue between himself and the solicitor, on which he could not be believed. In like manner, one of several co-plaintiffs may apply to have his name, if inserted without proper authority, struck out of the record with costs of the suit and of the application to be paid by the solicitor (Wilson v. Wilson, 1 Jac. & W. 457; Tabbernor v. Tabbernor, 2 Keen, 679; Pinner v. Knights, 6 Beav. 174; Maries v. Maries, 23 L. J. Ch. 154). But the Court will not allow a co-plaintiff, who originally authorised the suit, to withdraw from it to the prejudice of the other plaintiffs; and a

On defen

dant's ap

motion by a co-plaintiff that on further proceedings being taken he should be indemnified by the solicitor was refused with costs (Winthrop v. Murmy, 7 Ha. 150). The order made on the plaintiff's motion will of course be without prejudice to any rights, which the solicitor may have against any person who really authorised the suit; but the Court will not, on the plaintiff's motion adjudicate between the solicitor and such other person, though one of the defendants (Crossley v. Crowther, 9 Ha. 384). A motion may be made by a defendant to have the plication proceedings in an action commenced by a solicitor, without proper authority of the nominal plaintiff, stayed, and for payment of the costs by the solicitor: see Duckett v. Gover, 25 W. R. 554, and cases cited there; and see Hubbart v. Phillips, 13 M. & W. 702. On such a motion the nominal plaintiff should be served, and the solicitor will be ordered to pay his costs as between solicitor and client, and the costs of the moving defendant as between party and party (Cape Breton Co. v. Fenn (C. A.), 17 Ch. D. 198); and see also Fergus Navigation and Embankment Co. v. Kingdon, 4 L. T. 262, where the bill was filed in the name of a company on the authority of one of the directors against the other directors; and Burgesses of Ruthin v. Adams, 7 Sim. 345. If the suit is really instituted by one of the defendants, the costs may be ordered to be paid by that defendant; see Blake v. Smith, Yo. 594, where the plaintiff was imbecile. In Hall v. Bennett, 2 S. & S. 78, where a bill had been filed without authority from the nominal plaintiff, who had absconded eight years before, and was dismissed with costs for want of prosecution, the Court, on motion by the defendants, ordered the solicitor to pay the costs. Where a solicitor gave the relator in a charity information an indemnity against costs, or used his name without authority (though afterwards assented to), the Court would order the information to be taken off the file with costs against the relator and solicitor (Attorney-General v. Skinners' Co., C. P. C. 7), "The view of the Court is that

when a solicitor takes upon himself the conduct of a suit by saying that he will indemnify his client against all costs where the plaintiff is a mere puppet, and the real party suing is the solicitor-the Court will hold the solicitor liable for all the expenses to which he has put the other parties by his conduct;" per Lord Hatherley, L. C., in In re Jones, 6 Ch. p. 49. See also In re E. S—, 4 Ch. D. 301. As to what is a sufficient retainer, see Hall v. Retainer, Laver, 1 Ha. 571; Bewley v. Seymour, 14 Jur. 213; what suffiAtkinson v. Abbott, 3 Drew. 251. The onus of proving the retainer lies on the solicitor (Wright v. Castle, 3 Mer. 12; Allen v. Bone, 4 Beav. 493; Wiggins v. Peppin, 2 Beav. 403; Crossley v. Crowther, 9 Ha. 384); but the retainer need not be in writing (Lord v. Kellett, 2 My. & K. 1, and cases there cited); and the authority to a country solicitor is sufficient without express authority to the London agents (Solley v. Wood, 16 Beav. 370). If, however, there is no written retainer, there should unquestionably be an authority to institute the suit given directly by the client to the solicitor (Re Gray, ex parte Incorporated Law Society, 20 L. T. 730).

ings.

Where a plaintiff, having had four bills successfully Vexatious demurred to, filed a fifth for substantially the same object, proceedthe Court ordered the bill to be taken off the file, and made the plaintiff pay all the costs of the litigation (Mortlock v. Mortlock, 20 L. T. 773).

SECT. VII.-Costs of the Day.

Order

Any verdict or judgment obtained where one party does R. S. C. not appear at the trial may be set aside by the Court or a XXXVI. judge upon such terms as may seem fit upon an application r. 20. made within six days after the trial (R. S. C. Ord. XXXVI., r. 20).

set aside

A judgment will be set aside under this rule if a proper Judgment case is shewn, but the party in default must pay the actual costs of the day when the action was called on and of the of actual

on payment

costs of the

Former practice.

General

costs of

special

case.

whom the costs of the action and special case are to be borne (Harrison v. Cornwall Minerals Ry. Co., 16 Ch. D. 66; 29 W. R. 258).

Under the old Special Case Act, 13 & 14 Vict. c. 35, the costs were also in the discretion of the Court, and as a general rule, the Court, in disposing of them, was governed rule as to by the rules which regulated it in ordering payment of the costs of a suit instituted by bill. Thus, if the difficulty arose out of a testator's will, the costs, as in an administration suit, were ordered to be borne by the testator's general estate (Cookson v. Bingham, 17 Beav. 262; Hindle v. Taylor, 5 De G. M. & G. 577; Armitage v. Coates, 35 Beav. 1; Earl Cowley v. Wellesley, ib. 635; but see Lloyd v. Cocker, 27 Beav. 649); or residuary real estate (Marshall v. Grime, 28 Beav. 379); or if there were no general estate, by the fund specifically bequeathed (Cookson v. Bingham; but see also, Lloyd v. Cocker). In Barnaby v. Tassell, 11 Eq. 363, the costs of all parties to a special case on the construction of a will were ordered to be paid out of the estate, the personal estate being first liable.

Where costs of special

case

ordered to

unsuccess

ful party.

In Usticke v. Peters, 4 K. & J. 457, however, V. C. Wood held that the costs of a special case were not to be decided on the same principle as those of an administra

be paid by tion suit, and that a plaintiff succeeding upon a special case arising out of the construction of a will was entitled to his costs from the defendant, each party fairly claiming what he thought himself entitled to; and there being no question of conduct involved. From the report of the case, it does not appear that any question as to the costs was inserted in the special case. So in Mortimore v. Mortimore, 4 De G. & J. 472, a special case having been stated for the opinion of the Court, at the instance of a tenant for life, with a view to obtaining an increase of her income by an investment, of which the Court in its judgment expressed disapprobation, the income of the tenant for life was ordered to bear the costs. Again, in Sabin v. Heape, 27 Beav. 561, the costs of a special case

were, in answer to a question in the case, declared to be payable by the defendant, upon the principle that, if a bill had been filed for specific performance, a decree would have been made against him with costs.

SECT. IX.-Costs of the Action.

of the

posed of.

Where further consideration of the action is reserved, The costз the costs of the action are generally also reserved (Scar- action, borough v. Burton, 2 Atk. 111; Jellicoe v. Price, 1 Y. & when disC. C. C. 74); but otherwise they are usually disposed of at the trial. If the costs of the suit are reserved at the trial, that reservation will not it seems include costs of interlocutory proceedings, &c., reserved until the trial, which therefore, unless expressly mentioned, may be lost (Gardner v. Marshall, 14 Sim. 575; Whalley v. Ramage, 8 L. T. 499). Although the costs of the suit are not expressly reserved at the hearing, yet the usual direction for the adjournment of the further consideration of the cause in effect reserves them (Seton, p. 72); and see Wallis v. Bastard, 2 W. R. 47.

Where, however, in a partnership suit, there was no special reservation of costs in the original decree, it was held that the defendant could not, on further consideration, be ordered to pay the costs of the action (Austin v. Jackson, 11 Ch. D. 942); and see Powell v. Elliot, 10 Ch. 424 23 W. R. 777; 33 L. T. 110.

It has recently been laid down that the costs of applications ordered to stand over until trial, and costs reserved to be disposed of at the trial, should follow the event of the trial unless otherwise ordered, without any special directions; see Hodges v. Hodges, (M. R.), 25 W. R. 162, Mem. W. N. (1876), 271. Under R. S. C. Ord. XV., r. 1, any matter required on further consideration as to costs may be proved by affidavit (Beaney v. Elliott, W. N. (1880), 99).