1880.

CHASE

v.

BRIGGS.

were the attendances on the Clerk, as has been mentioned, yet it was not attending on a decretal order. There is a fee on the common law side of twenty cents for every attendance on the Clerk, and the equity fee table says, Palmer, J. "That for all other service the like fees shall be allowed as on the common law side," and I think the fees allowed for these attendances are governed by this, and the Clerk should only have allowed twenty cents for each attendance, sixty cents in all, instead of $2.68, and this should be reduced by $2.08.

The Clerk has also allowed $3.10 for abbreviating affidavits used on the application, and has disallowed $1.20 for making copies of such abbreviations. The plaintiff now contends that the law does not allow any fee for abbreviating affidavits, and therefore this should be wholly disallowed. The defendant contends that he is entitled not only to the abbreviations but to making a fair copy of them under the item of making copy of any writing not otherwise provided for, 10 cents per folio. On the first point I think I am precluded by the judgment of the Court in the case of Hendricks v. Hallett (1), which was an application by Mr. Thomson himself to have the abbreviating of affidavits added to his bill, which the Clerk had struck off, and they were added by the Court, as appears by the judgment of the Chief Justice, and so plain was the point considered to be that it appears to have been admitted by the counsel on both sides that they should have been allowed. This decision was on the table of fees in 17th Vict. c. 18, the words of which are identical with the Consolidated Statute now in force, and are as follows: "Abbreviating bill, answer or other proceedings." But if the matter were res integra I would have no doubt, for this application and order were wholly founded on affidavits, and surely they were part of the "proceedings," and within the plain words of the statute; I, therefore, think this item was properly allowed, and as it has always been considered necessary for the solicitors to engross, that is, make a fair copy of the draft of all writings, I think (1) 1 Han. 170.

1880.

CHASE

v.

BRIGGS. Palmer, J.

the Clerk should have allowed for such fair copy of the abbreviations, and that $1.20 must be added for this

item.

The five dollars for the brief was objected to and allowed. Although I think this right in any view of the case, as it would come to that sum no matter on what principle it was taxed, yet as I understand the Clerk allowed it under the item of $5 allowed on the common law side, and as I am of opinion he was wrong in this, I think it right to say so.

There never was any specific fee allowed for a brief in this Court, but it was always taxed at 20 cents per folio, for drawing 10 cents, and the like sum for each copy required. Under the item in the table of fees, "Drawing bill, etc.," is 20 cents per folio, and 10 cents per folio for each copy, because a brief was a writing, and it was not otherwise provided for; and, in my opinion, this is the proper mode to tax for it, and it does not come under the item "other services," for which the same fees are given as on the common law side. Then there is a charge of $11 made for Clerk's fees objected to. But it appears by the Clerk's own signature that the defendant had to pay him this amount, and neither counsel can show by the materials brought before me either that the charge is right or wrong, nor can I ascertain from such materials.

Mr. Thomson's contention is that Mr. Kerr ought not to have paid a bill without the Clerk giving him the item of his fees, and that they should appear in the bill of costs. And while I agree that it would be more correct for the Clerk to give the items of his bill, yet I cannot see how Mr. Kerr is to blame because he has not

done so. It would be quite as easy for the plaintiff's counsel, on taxation, to ask the Clerk for the items as for Mr. Kerr to do so. At all events, I do not think I can deal with this question without calling the Clerk before me to answer for himself, and in fairness to him I think Mr. Thomson should have asked the Clerk for the items before he brought the matter before me, if he intended to dispute his bill. I suppose Mr. Thomson's main objection to the Clerk's bill was made because he

1880

CHASE v.

BRIGGS.

thought there was no necessity for settling the minutes of the order, but I think otherwise, and don't see that the Clerk's fees are affected otherwise than as $1 is allowed on decrees which is not allowed on orders. The result Palmer, J. of the whole is, that $2.08 is to be deducted and $1.20 to be added to the costs as taxed, thus reducing the amount as taxed by the Clerk 88 cents, and making the costs taxed on the order $84.12, for which the defendant will be entitled to issue a fieri facias unless paid in ten days from this date. As both parties were partially wrong, I allow no costs of this application to either party.

The Clerk's taxation of costs may be reviewed by the Court: Hendricks v. Hallett, 1 Han. 170; New Brunswick Ry. Co. v. Kelly, 1 N. B. Eq. 156, unless there has been an appeal, when the taxation is reviewable before the Supreme Court: Cudlip v. Rector, etc., of St. Martins, 2 Pug. 8; Clark v. Schofield, 29 N. B. 403. The application may be made on motion and affidavit, specifically pointing out the items objected to: Hendricks v. Hallett, supra; Cudlip v. Rector, etc., of St. Martins, supra; in re Ponton, 15 Gr. 355. The taxation may be reviewed where the clerk has acted upon a wrong principle, but not where the question is one of mere quantum: Hendricks v. Hallett, supra; Clark v. Schofield, supra; Cousens v. Cousens, L. R. 7 Ch. 48; Attorney-General v. Drapers' Co., L. R. 9 Eq. 69; Alsop v. Lord Oxford, 1 M. & K. 564; Russel v. Buchanan, 9 Sim. 167; Re Hubbard, 23 Beav. 481; Re Catlin, 18 Beav. 508; Friend v. Solly, 10 Beav. 329; Attorney-General v. Lord Carrington, 6 Beav. 454; In re Congreve, 4 Beav. 87; Fenton v. Crickett, 3 Madd. 496; Stockton v. Dawson, 5 L. J. (N. S.) Ch. 122; or where the objectionable items are very small: Moffat, 2 P. & B. 406; Clark v. Schofield, supra. Where, however, there has been irregularity before the Taxing Master, Fenton v. Crickett, supra; or where costs had been wrongly omitted from taxation, Greenwood v. Churchill, 14 Beav. 160; Budgett v. Budgett, [1895] 1 Ch. 202; or where he refused to allow costs in respect of a particular proceeding, Heming v. Leifchild, 8 W. R.; 9 Ib., or where the charges were exorbitant, Smith v. Buller, L. R. 19 Eq. 473, the taxation was ordered to be reviewed.

Bell v.

1880

WALSH v.

MCMANUS.

October 1,

Security for costs -Bond-Obligee-Amount.

The bond for security for costs in the Equity Court is to the Clerk of the Court, and in the sum of $500.

This application was made by the defendant to set aside the bond put in by the plaintiff as security for costs, on the ground that the obligee should be the defendant, and not the Clerk of the Court.

Argument was heard September 29th, 1880.

W. B. Wallace, for the defendant.

L. R. Harrison, for the plaintiff.

1880. October 1. PALMER, J.:—

The question in this cause is whether the bond given as security for costs in this suit was properly given to the Clerk of the Court. It was contended on behalf of the defendant that he should have been the obligee. In this matter I think I am to be governed by the practice of the Court of Chancery in England prior to 1839. By the practice of that Court the bond was required to be given to one of the clerks in Court. By Order 40, r. 6, made April 3rd, 1828, the amount of the security which the plaintiff was required to give was fixed at £100 sterling. The reason why the bond is not given to the defendant is plain, when it is considered that the interests of the parties whom it is the object of the Court to protect are not always the same, and it may be that they are adverse, and a plaintiff may become liable to pay costs to one or more defendants without being liable to all. In many cases the interests of all could not be protected unless various bonds were given, if the practice required that the defendant or defendants should be the obligees. I therefore think that the proper practice is to give the bond to the Clerk; that the plaintiff should only be required to give one bond, and that the amount of such

bond should not exceed $500. (For form of condition of bond, see 1 Grant's Chan. Prac. 438.) The proceedings on the bond are by scire facias: Smith's Chan. Prac., vol. 1, pages 560 and 646.

Where the sole plaintiff or all the plaintiffs reside abroad security for costs will be ordered: Dan. Ch. Pr. (4th Am. ed.), 27; Republic of Costa Rica v. Erlanger, 3 Ch. D. 62; Crozat v. Brogden, [1894] 2 Q. B. 30. But not if there are co-plaintiffs resident within the jurisdiction: Winthorp v. Royal Exchange Assurance Co., Dick. 282; Walker v. Easterby, 6 Ves. 612; D'Hormusgee v. Grey, 10 Q. B. D. 13; Smith v. Silverthorne, 15 P. R. 197. If the plaintiff goes out of the jurisdiction permanently after institution of the suit security may be ordered: Lonergan v. Rokeby, Dick. 79; Green v. Charnock, 1 Ves. Jr. 396; Hoby v. Hitchcock, 5 Ves. 699; Weeks v. Cole, 14 Ves. 518; White v. Greathead, 15 Ves. 2; Blakeney v. Dufaur, 2 De G. M. & G. 771; Edwards v. Burke, 9 L. T. (N. S.) 406; Massey v. Allen, 12 Ch. D. 807; Hately v. Merchants Despatch Transportation Co., 10 P. R. 253. Security was required from a plaintiff who had given up his house in England since the filing of the bill, and had gone to reside abroad, as he stated, for a temporary abode, but who left it uncertain whether and when he intended to return: Kennaway v. Tripp, 11 Beav. 588; and see Stewart v. Stewart, 20 Beav. 322; Snook v. Duncan, 5 Jur. 1078; Wilson v. Wilson, 6 P. R. 152. Security will not be ordered if the plaintiff is residing within the jurisdiction at the time of the application: Newcombe v. City of Moncton, 31 N. B. 386; though he intends to go abroad after judgment: Cambottie v. Inngate, 1 W. R. 533; Redondo v. Chaytor, 4 Q. B. D. 453; Ebrard v. Gassier, 28 Ch. D. 232; Wilder v. Hopkins, 4 P. R. 350; Anderson v. Quebec Fire Ins. Co., 15 P. R. 132. As to what constitutes residence abroad, see Ex p. Brandon, 25 Ch. D. 500.

Security may be required from a petitioner under the same circumstances as from a plaintiff: Ex p. Foley, 11 Beav. 456; In re Norman, 11 Beav. 401; Ex p. Latta, 3 De G. & S. 186; Ex p. Seidler, 12 Sim. 106: In re Dolman, 11 Jur. 1095; except where the petition is presented in a cause to which the petitioner is a party: Cochrane v. Fearon, 18 Jur. 568; secus if he is not a party to the suit: Drever v. Maudesley, 5 Russ. 11; Partington v. Reynolds, 6 W. R. 307.

If the plaintiff has substantial property, either real or personal, within the jurisdiction, security will not be ordered: Redondo v. Chavtor, 4 Q. B. D. 453, 457; Hamburgher v. Poetting, 30 W. R. 769; Clarke v. Barker, 6 Times Rep. 256; Redfern v. Redfern, 63 L. T. 780. The rule applies to a foreign company: Re Apollinaris Co.'s Trade-Marks, [1891] 1 Ch. 1. In Ebrard v. Gassier, supra, Bowen, L.J., observed that the property must be of a fixed and permanent nature, available for costs; and see Re Howe Machine Co., 61 L. T. (N. S.) 170; Kilkenny Ry. Co. v. Fielden, 6 Ex. 81; Higgins v. Manning, 6 P. R. 147; McKenzie v. Sinton, Ib. 282; Wilson v. Wilson, Ib. 152; Welsbach Gaslight Co. v. St. Leger, 16 P. R. 382. Lord Halsbury, L.C., in In re Apollinaris Co.'s TradeMarks, supra, said that the property might consist of goods and chattels sufficient to answer the possible claim of the other litigant, and available to execution. The plaintiff must prove the nature and location of his property in order to show that it is available to execution: Sacher v. Bessler, 4 Times Rep. 17.

If defendant admits his liability, or has funds in his hands belonging to the plaintiff, he is not entitled to security for costs: De St. Martins v. Davis, W. N. (1884) 86; Re Contract & Agency

1880.

WALSH v.

MCMANUS.

Palmer, J.