tions, the court will make such further order in the cause as, upon reading the master's report, appears to be consistent with the justice of the case, as it stands upon the decree and report, unless it is dissatisfied with the manner in which the master has executed the duties imposed upon him by the decree, in which case it will send it back to him to review his report, or such part of it as the court sees reason to be dissatisfied with.1 The court will not, on further directions, decide a question not reserved by the decree.17 As no variation can be made in the original decree upon the hearing for further directions, neither will the court entertain an objection to it upon a ground which might have been made at the original hearing.18 As a general rule, a decree cannot be altered on further directions, but it must be reheard.19

§ 741. Forms of clauses of reservation for further directions.

16

And the court doth reserve the consideration of all further directions until after the said master shall have made his report.20

And the court doth reserve the consideration of costs, and of all further directions, until after the said trial shall be had.21

16 1 Barbour, Ch. Pr. 562.

17 2 Smith, Ch. Pr. 404; Le Grand v. Whitehead, 1 Russ. 309.

181 Barbour, Ch. Pr. 563; Pritchard v. Draper, 1 Russ. & M. 191; 2 Smith, Ch. Pr. 404.

19 1 Barbour, Ch. Pr. 562; Shipbrooke v. Hinchinbrook, 13 Ves. 394. See, also, Goodyere v. Lake, Amb. 584; Creuze v. Lowth, 4 Brown, Ch. 318; Maghee v. Mahon, 1 Moll. 147; Pearse v. Green, 1 Jac. & W. 135; Turner v. Turner, 1 Jac. & W. 43; Wilson v. Metcalfe, 1 Russ. 530; Champ v. Moody, 2 Ves. Sr. 470; Franklin v. Beamish, 2 Moll. 383; Attorney General v. Town of Galway, 1 Moll. 95. For consideration of hearing on further directions, see 2 Smith, Ch. Pr. 396-411; 1 Barbour, Ch. Pr. 558-563.

20 Curtis, Eq. Prec. 392.

21 Curtis, Eq. Prec. 449.

Equity-49

(769)

CHAPTER XXXVIII.

COSTS.

§ 742. In general.

The hearing of a cause on further directions is generally the occasion for deciding the "costs of the cause," which are distinguished from incidental costs, which are disposed of as they arise. In considering this subject, it must be borne in mind that the jurisdiction in equity is not like that at common law,— purely litigious, but, in many instances, protective and administrative. And it is obvious that, under each of these heads, the rule as to costs may properly be very different. In suits under the protective and administrative jurisdiction of the court, the general principle is that the party requiring aid shall be liable for the costs.2 In suits under the litigious jurisdiction of the court, the general principle is that the costs shall follow the result. But costs do not follow as a matter of right, as in proceedings at law, but the allowance of costs rests in the discretion of the court.4 The discretion, however, is a sound legal discretion, and should be so exercised as to work no injustice. The rule that costs follow the result of the suit, and are awarded to the prevailing party, is departed from when the failing party can show to the court any circumstances which

1 Adams, Eq. 388.

2 Adams, Eq. 388. See, for illustrations of suits under the protective and administrative jurisdiction of the court, Adams, Eq. 389, 390. Adams, Eq. 391..

4 Coburn v. Shroeder, 8 Fed. 521; McArtee v. Engart, 13 Ill. 242; Johnson v. Meyer, 54 Ark. 442, 16 S. W. 123; Magarity v. Shipman, 82 Va. 784, 1 S. E. 109; Du Bois v. Kirk, 158 U. S. 58.

5 North v. Roodhouse, 52 Ill. App. 17; Woods v. Douglas, 46 W. Va. 657, 33 S. E. 771.

!

would render it unjust that he should pay the costs of the proceeding. It is held that, where the questions involved in a case are new and important, or the practice is unsettled, costs should not be given either party." Where the complainant fails on the main issue in controversy, and succeeds only on an issue of trivial importance, he is not deemed to be the prevailing party, within the sense of the rule. But where he has prevailed upon the main issue in the case, though not to the full extent of his claim, yet to a greater extent than admitted by the defendant, he will be allowed costs.9 Where costs have accrued from unnecessary litigation, or from errors in the complainant's proceedings, they will be denied.10 In bills to redeem, the defendant is usually awarded costs, but in such cases unreasonable resistance by the defendant may render him liable for costs;11 or the court may give costs to neither party.12 Where both parties are in fault, costs may be allowed neither.18 So, also, where each

Moyers v. Coiner, 22 Fla. 422; Lewis v. Yale, 4 Fla. 441. The question of costs is sometimes regulated by statute or rule of court. Rev. St. Ill. c. 33, § 18, leaves it to the discretion of the court to award costs in all chancery cases, except when the bill is dismissed by the complainant, or on the motion of the defendant for want of prosecution. North v. Roodhouse, 52 Ill. App. 17. In the federal circuit court, complainant is not entitled to costs where the decree rendered is for a sum less than five hundred dollars. McKay v. Jackman, 17 Fed. 641. See, for consideration of costs in the federal courts, and also generally, Foster, Fed. Pr. §§ 326-338; Beach, Mod. Eq. Pr. §§ 1002-1044. Costs in various proceedings are also elsewhere considered in connection with such proceedings, and the reader is referred to the index in this connection.

7 Grattan v. Appleton, 3 Story, 755, Fed. Cas. No. 5,707; Culver v. McKeown, 43 Mich. 322, 5 N. W. 422; Denehey v. City of Harrisburg, 2 Pears. (Pa.) 330; Jones v. Mason, 5 Rand. (Va.) 577, 16 Am. Dec. 761. › Marks Adjustable Folding Chair Co. v. Wilson, 43 Fed. 302. Weston v. Cushing, 45 Vt. 531.

10 Blakeney v. Ferguson, 14 Ark. 640; Frisby v. Ballance, 5 Ill. 287, 39 Am. Dec. 409.

11 Vroom v. Ditmas, 4 Paige (N. Y.) 526.

12 Loveridge v. Larned, 7 Fed. 294.

13 Hamilton v Hamilton, 13 B. Mon. (Ky.) 502; Johnson v. Taber, 10

N. Y. 319; Nowland v. Glenn, 2 Md. Ch. 368; Loveridge v. Larned, 7
Fed. 294.

of the parties prevailed and failed to some extent, the costs may be divided or apportioned according to the relative importance of the items in dispute won and lost by the respective parties, and the time and expense spent by each.14 A tender by the defendant of the full amount found to be due may render the complainant liable for costs thereafter accruing, but an offer of less than the complainant was entitled to, made by the defendant after the filing of the bill, is not ground for a division of the costs.15 Where the holder of an invalid tax title refused to accept a tender of more than he was entitled to receive, and made it necessary to prosecute a bill to set aside the tax title, it was held proper to tax the costs against him.16 The complainant must pay or bring into court all that he is in equity bound to pay before he can obtain the relief sought, or the costs up to the time of such payment may be decreed against him.17 Where the defendant offered, before the filing of the bill, all the relief which the complainant obtained under the decree, and such offer was refused, it was held that the entire costs were properly imposed upon the complainant.18 Where the defendant, who has no interest in the subject-matter of the controversy, properly disclaims all right, the bill will be dismissed as to him with costs therein, but if he sets up a claim, and insists upon a declaration of his rights, the dismissal, as to him, will be made without costs.19 As a general rule, no person can have a judgment for costs unless he is a party to the suit;20 and a judgment for costs cannot be rendered against one not a party to the suit.21 The court will not hear a cause merely to decide the question of costs,

14 Bridges v. Sheldon, 7 Fed. 17.

15 Benedict v. Beurmann, 90 Mich. 396, 51 N. W. 461.

16 Gage v. Du Puy, 137 Ill. 652, 24 N. E. 541.

17 Sneed v. Town, 9 Ark. 535.

18 Gallagher v. Witherington, 29 Ala. 420.

19 McKinnon v. McDonald, 57 N. C. 1, 72 Am. Dec. 574. See. also. Catlin v. Harned, 3 Johns. Ch. (N. Y.) 61.

20 Winship v. Conner, 43 N. H. 167.

21 Winship v. Conner, 43 N. H. 167; Wallace v. Espy, 68 Ill. 143.

where the parties have compromised the suit, reserving that question for the decision of the court.25

§ 743. Costs out of the fund.

22

It is held that, where one person institutes legal proceedings for himself and others, and thereby secures the fund for the common benefit of all, an allowance will be made to him for costs and expenses necessarily incurred, including reasonable solicitor's fees. 23 But where the interests of the parties are adverse, nothing beyond the legal taxable costs can be allowed by one party as against the other.24 The owner of stock in a corporation who sues for himself and all other shareholders successfully for a wrong done to the corporation is entitled to be reimbursed for his actual and necessary expenses, including attorneys' fees, out of the corporate fund.25

22 Stewart v. Ellice, 2 Paige (N. Y.) 604; Walpole v. Griffin, Wright (Ohio) 95; Gibson v. Cranley, 6 Madd. 365, Roberts v. Roberts, 1 Sim. & S. 39; Eastburn v. Kirk, 2 Johns. Ch. (N. Y.) 317.

23 See Kadish v. Chicago Co-operative Brewing Ass'n, 35 Ill. App. 411; Whitsett v. City Building & Loan Ass'n, 3 Tenn. Ch. 526. See, also, Mason v. Codwise, 6 Johns. Ch. (N. Y.) 297; Rains v. Rainey, 11 Humph. (Tenn.) 261; Ex parte Plitt, 2 Wall. Jr. 453, Fed. Cas. No. 11,228; Stanton v. Hatfield, 1 Keen, 358; Thompson v. Cooper, 2 Colly. 87; Tootal v. Spicer, 4 Sim. 510; Larkins v. Paxton, 2 Mylne & K. 320; Sutton v. Doggett 3 Beav. 9. An allowance is properly made out of the fund of a fee for the solicitor by whose exertions the fund was recovered, and the amount thereof is within the judicial discretion of the court. Harrison v. Perea, 168 U. S. 311; Trustees v. Greenough, 105 U. S. 527; Fowler v. Equitable Trust Co., 141 U. S. 411; Attorney General v. Brewers' Co., 1 P. Wms. 376; Attorney General v. Old South Society in Boston, 13 Allen (Mass.) 474.

24 State v. Florida Cent. R. Co., 16 Fla. 703; Ryckman v. Parkins, 5 Paige (N. Y.) 545. In suits to establish or administer a charity, if the fund be of adequate amount, and the parties have conducted themselves with propriety, the taxation of costs, "as between solicitor and client," is extended to the costs of all; and a privilege of a like character is conferred on the complainant in a creditors' suit, if the estate to be administered prove insolvent, for, in this case, the creditors whom he represents are entitled to the whole fund. But if there be any surplus, so that other persons become interested, he can claim only his costs as between party and party. Adams, Eq. 391; Stanton v. Hatfield, 1 Keen, 358.

25 Grant v. Lookout Mountain Co., 93 Tenn. 691, 28 S. W. 90, 27 L. R.