XXVII., r. 1; Christie v. Christie, 8 Ch. 499; 42 L. J. Ch. 544; 21 W. R. 493; 28 L. T. 607; Forester v. Read, 6 Ch. 40; 19 W. R. 114; 24 L. T. 79; Rubery v. Grant, 13 Eq. 443; 26 L. T. 538); that is, their costs as between solicitor and client, including (see Christie v. Christie) the costs of an appeal. See also Coyle v. Cuming, 27 W. R. 529; 40 L. T. 455, where the next friend of a married woman was ordered to pay the costs; Pearse v. Pearse, 22 W. R. 69; 29 L. T. 453, where the Court allowed a wife, as against her husband, costs of exceptions for scandal as between solicitor and client; Cracknall v. Janson, 11 Ch. D. 1; 27 W. R. 55, where it was held by Fry, J., that the Court has power to strike out scandalous matter from an affidavit, or to order the person who has filed it to pay the costs of it, on the application of any person, even a stranger to the action, or mero motu: Blake v. Albion Assurance Co., 45 L. J. C. P. 663; 24 W. R. 677; Devonsher v. Ryall, Ir. R. 11 Eq. 460; Atwool v. Ferrier, 14 W. R. 1014; 14 L. T. 728; Edmunds v. Lord Brougham, 13 L. T. 790; 12 Jur. N. S. 156; W. N. (1866) 67, 93, (where, however, the costs were ordered to be taxed as between party and party, sed qu.); Duncan v. Vereker, W. N. (1876) 64.

Such pleadings as ought to be struck out should it seems be struck out by the judge, rather than be left to be dealt with as a question of costs (Watson v. Rodwell, 3 Ch. D, 380); and charges and statements which would not have been improper under the former system may, nevertheless, be struck out under the Judicature Acts (ibid.).

In In re Savage, 15 Ch. D. 557, parties lost their costs. of a successful motion because they had filed an irrelevant affidavit containing improper imputations.

can be

But nothing relevant to the issue can be considered Nothing scandalous, however offensive or libellous it may be in relevant itself (Christie v. Christie, 8 Ch. 499; 42 L. J. Ch. 544; scandalous. 21 W. R. 493; 28 L. T. 607; Rubery v. Grant, 13 Eq. 443; 26 L. T. 538); and see Fisher v. Owen, 8 Ch. D.

Officer of the Court,

645: 47 L J. CL. 681; 26 W. R. 551; 38 L. T. 577; Brfx. Col. 20 W. R. 734: 26 L. T. 756.

In ez porte Sings. 15 Ves. 476, an affi lavit in bankropter was ordered to be taken of the file as scandalous and impertinent, with costs against the solicitor who male it, as between solicitor and client. Cf. ex parte Thoyy 1. Ves jul.. 394; ex parte Porter, 2 M. & A.

220.

In Rostory v. Grunge, 16 Ves. 232, it was held that counsel and agent were liable for costs on account of scandal and impertinence; and cf. Emerson v. Dallison, 1 Ch. Rep. 194. In Bishop v. Willis, 5 Beav. 83, n., a solicitor, having put scandalous matter in an answer, and put counsel's name to it without his authority, was committed, and ordered to pay costs.

Where, in the course of any proceeding in the Court, solicitor. imputations are cast on the character of one of its officers, as such, he is entitled to appear and defend himself therefrom, and, if successful, he will get his costs (Talbot v. Talbot, 16 W. R. 201, which was the case of a solicitor whose character had been impugned).

to strike

made.

Application Applications to strike out scandalous matter may be out, how made either by summons or motion; but, as a rule, if they are made by motion only the costs of a summons attended by counsel will be allowed (Marriott v. Marriott, 26 W. R. 416; W. N. (1878) 57). If the scandalous. matter should occur in any proceeding at chambers, the application must be made by summons (Cons. Ord. XXXV., r. 60). By R. S. C. Ord. XXXI., r. 5 (Nov. 1878), au application to strike out interrogatories for scandal may be made at Chambers within four days after service of the interrogatories.

2. Costs occasioned

by irrele

vancy or prolixity.

When the insertion of irrelevant, immaterial, or prolix matter may occasion embarrassment to the opposite party, such matter, or even the whole pleading containing it, may be ordered to be struck out (R. S. C. Ord. XXVII., r. 1); and the party in fault will be ordered to pay the costs:

in plead.

ings.

see Davy v. Garrett (C. A.), 7 Ch. D. 743; 26 W. R. 225 ; Cashin v. Cradock (C. A.), 3 Ch. D. 376; 25 W. R. 4; Williamson v. L. & N.-W. Ry. Co., 12 Ch. D. 787. In adjusting the costs of an action the Court will inquire, at Prolixity the instance of any party, into any needless prolixity in the statements of claim, defence, and reply, and will order the costs thereby occasioned to be borne by the party chargeable with the same (R. S. C. Ord. XIX., r. 2). And any costs occasioned by the use of any more prolix or other forms of writs and endorsements than those prescribed by the rules must be borne by the party who uses them, unless the Court otherwise directs (R. S. C. Ord. II., r. 2).

costs of im

unneces

matter.

By R. S. C. (Costs) Sched., r. 18, the Court or judge Disallow may direct the costs of any proceeding (whether the same ance of the is objected to or not) which is improper, unnecessary, or proper or contains unnecessary matter, or is of unnecessary length, sary proto be disallowed, or may direct the taxing officer to look ceeding or into the same and to disallow the costs thereof, or of such part thereof as he shall find to be improper, unnecessary, or to contain unnecessary matter, or to be of unnecessary length; and in such case the party whose costs are so disallowed must pay the costs occasioned to the other parties by such unnecessary proceeding, matter, or length. Where such question shall not have been raised before and dealt with by the Court or judge, the taxing officer may look into the same (and, as to evidence, although the same may be entered as read in any decree or order) for the purpose aforesaid, and thereupon the same consequences shall ensue as if he had been specially directed to do so. The taxing-master must exercise the discretion given him by this rule without special directions from the judge; see Re Wormsley, Baines v. Wormsley, 47 L. J. Ch. 844; 27 W. R. 36; 39 L. T. 85; W. N. (1878), 193. By rule 19, the taxing officer may in such cases adjust such costs, certifying for payment, or set-off, or may delay their allowance; and by rule 20, where questions as to

Costs of improper interrogatories.

Costs of unneces

sary matter

vits.

such costs are dealt with at Chambers in the Chancery Division, the chief clerk is to make a note thereof for the information of the taxing-master.

In Owens v. Emmens, W. N. (1875), 210, 234, a motion to take an affidavit off the file for length and irrelevancy was refused, and it was said that the attention of the Court should be drawn to such matters at the hearing. For a direction to the taxing-master under r. 18 to look into and disallow the costs of affidavits of unnecessary length, see Cracknall v. Janson, 11 Ch. D. 1; 27 W. R. 55.

In London & St. Katharine Docks Co. v. Metropolitan Ry. Co., 35 L. T. 733, portions of the plaintiff's reply were struck out as irrelevant, but the application being frivolous and unnecessary no costs were given.

By R. S. C. Ord. XXXI., r. 2, the Court in adjusting the costs of the action shall at the instance of any party inquire, or cause inquiry to be made, into the propriety of exhibiting any interrogatories that may have been delivered, and if it is the opinion of the taxing-master or of the Court or judge, that such interrogatories have been exhibited unreasonably, vexatiously, or at improper length, the costs occasioned by the said interrogatories and the answers thereto shall be borne by the party in fault.

The costs of every affidavit which unnecessarily sets forth matters of hearsay or argumentative matter, or in affida- copies of or extracts from documents, must be paid by the party filing the same (R. S. C. Ord. XXXVII., r. 3; Hirst v. Procter, W. N. (1882), 12), Under this rule affidavits by persons having no personal knowledge of the matters deposed to, cannot be used at the hearing, and the costs of them will be disallowed: per Jessel, M. R., W. N. (1876), 59; and see also r. 3a of this Order (April, 1880), prescribing the form of affidavits; no costs will be allowed of any affidavit or part of any affidavit substantially departing from this rule,

SECT. IV.-Costs and Expenses of Witnesses.

In the old Court of Chancery the evidence was usually given by affidavit, though occasionally it was given viva voce. The Judicature Act has altered this, and the rule now is that the witnesses at the trial of an action must be examined viva voce and in open Court, unless the parties agree to take the evidence by affidavit, or the Court otherwise order. But upon any motion, petition, or summons, evidence may be given by affidavit, and any party making an affidavit may be ordered to attend for crossexamination (R. S. C. Ord. XXXVII., rr. 1, 2). In some cases the examination or cross-examination is conducted before an examiner.

Defendants (trustees) who perversely and unreasonably refused to consent to have the evidence taken by affidavit were ordered to pay the costs of an unsuccessful motion for this purpose (Patterson v. Wooler, 2 Ch. D. 586; 24 W. R. 455; 45 L. J. Ch. 274; 34 L. T. 415).

entitled to his

before

When any person is called to give evidence in chief, Witness or to be cross-examined on evidence already given by him, he is entitled to his reasonable expenses; and if they are expenses not tendered to him he may refuse to be sworn. This being applies as well to a party to the cause called to be sworn; examined, as to a witness stranger to the cause (Davey v. Durrant, 24 Beav. 493; 2 De G. & J. 506).

The witness's expenses should be tendered to him at the time when he is served with the subpoena, or at any rate a reasonable time before the trial; and even though he actually appears, he cannot be attached for declining to give evidence, unless these charges are paid or tendered. But he cannot refuse to be examined on the ground that the expenses incurred by him on former attendances have not been paid. If the witness be a married woman, the money should be tendered to her, rather than to her husband; and if a person be subpoenaed by both parties,

whether a

party or a stranger.