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allows or disallows, or modifies the several charges, according to the established practice, where such practice exists, and in other cases according to the reasonableness of each charge; having taken off all overcharges, he reports to the judge, in open court, the amount of the bill as allowed, and the proctor makes oath that the sum reported has been necessarily expended by or on behalf of his party. If no objection has been offered to the report, the judge then taxes the bill at that sum, and decrees a monition for the payment of it; but if either party is dissatisfied with the report of the registrar, on any item of the bill, the objection may be brought before the court for its decision. The regular charges are, however, so well known and established, and the registrars of the several courts, who are acting under the sanction of an oath of office, are so experienced and respectable, being generally selected out of the body of proctors, on the ground of their high character and professional knowledge, that an exception to their report as to costs rarely occurs. (a) In taxing costs, the expense of the monition for payment is always added, [ *532 ] and if the monition is not obeyed in the first instance, the further expense seems to fall by a just and even necessary consequence upon that party by whose neglect or refusal to obey in the first instance it has been incurred. (y) The court will not direct the deputy registrar to allow the solicitor of a party who has a new proctor, to be present at the examination by consent of the bill of costs of his former proctor, such an attendance being unusual and unnecessary to the purposes of justice. (z)

Payment of Costs, how enforced.]-The payment of the costs thus taxed as between party and party is enforced by the process of contumacy, significavit, and attachment; but the costs incurred by a party in a cause, and due to his own proctor, cannot be taxed by the judge, nor the payment thereof be enforced by the court; the proctor must recover his bill of costs against his client by an action at law.(a)

A proctor, registrar, or apparitor, cannot sue in the spiritual court for his fees, nor the judge commit for non-payment of them.(b)

The ecclesiastical court has no jurisdiction to decide what is due, nor to enforce payment with respect to costs between proctor and client, incurred in a contested suit. Even in common form business, in which the proctor is acting more in the character of an officer of the court, and for which there is an established table of fees, and which is subject therefore, to more direct control, the court has of its own authority no such power; but where costs are given against a party, the court, in order to carry its sentence into execution, is empowered to tax the costs, and to enforce the payment; but as between proctor and client, the court has no such authority; it can neither decide what shall be received nor what shall be paid, nor can it enforce payment. The proctor can only recover his charges by action at law, when he must prove the items of his bill. All that the

(z) Rep. Eccl. Comm. 20.

(y) 2 Addams, 351.

(a) Rep. of Eccl. Comm. 20.
(b) Pollard v. Gerard, Ld. Raym. 703;

(z) Peedle v. Evans, 1 Hagg. Eccl. R. Pearson v. Campion, 1 Dougl. 629; Johnson

684.

v. Lee, 5 Mod. 238.

ecclesiastical court can do, is upon the application of the client, to refer the bill to the registrar for examination. The

[ *533 ] court does this for one of two purposes; first, to enable the suitor to judge what he will pay or tender before bringing the matter into a court of law by refusal of payment;-but this is not properly a taxation of the bill; the registrar does not report the bill to the court; the judge does not tax the bill, the proctor first making oath that the amount reported has been necessarily expended; nor does the court issue a monition for the payment of the sum taxed. It has no such authority between proctor and client. The reference to the registrar is merely by consent and in aid of justice, and for the convenience of suitors; and neither party is bound as to the amount by the regis trar's examination. (c)

Costs between Husband and Wife in Matrimonial Suits.]-In suits instituted either by the husband or the wife, the wife is a privileged suitor as to costs and alimony.(d) The principle on which the rule is founded is, that under the ancient law of this country the wife is presumed to have no separate fortune, and that by marriage the whole property is supposed by law to be in the husband. If the wife, therefore, is under the necessity of living apart, it is also necessary that she should be subsisted during the pendency of the suit, and that she should be provided with the means of defence.(e) After an appearance has been given on the part of the husband, and a libel and issue confessing the marriage, but otherwise contesting the suit, the cause in ordinary cases is arrived at that stage when the proctor for the wife usually prays costs. Where the foundation of the rule is taken away, the rule itself ceases. Therefore, where the wife has an income competent to her support, and the maintenance of the suit, she is not a privileged suitor. The general rule is, that the husband must pay the costs incurred by the wife in a suit for a divorce. The costs of the wife were directed to be taxed against the husband, although the wife had a separate income of 2361. per annum, the husband being a captain in the navy, having an income averaging when employed [ *534 ] 510l. a year, there being no *rule for apportioning costs

between the husband and wife, where the income of both is small. (f) To relieve the husband from the payment of the wife's costs, it must appear that the wife has an income correspondent to her own expenses and the necessary expenses of the suit, for both must appear.(g) The circumstances of the wife living with her mother does not alter the case, for the mother is not bound to maintain her.(h) In matrimonial suits the general rule is, that the wife has a right to have her costs taxed at all times.(i) The object of the law in permitting a taxation de die in diem must obviate any inconvenience or delay that might otherwise arise in the progress of the cause, from the wife's want of funds to meet the costs. But where a suit by the wife against the husband had abated by the wife's death, the court

(c) By Sir John Nicholl, Peddle v. Toller, 3 Hagg. Eccl. R. p. 287, 288; Peddle v. Evans, 1 Hagg. Eccl. R. 684; Cheale v. Cheale, ib. 375.

(d) Fitzgerald v. Fitzgerald, 1 Lee, 649; Bird v. Bird, ib. 209.

(e) Wilson v. Wilson, 2 Hagg. Cons. R.

204.

(f) Belcher v. Belcher, 1 Curteis, 444.
(g) Davis v. Davis, cited 2 Hagg. Cons.
R. 203; 1 Curteis, 445.

(h) Beevor v. Beevor, 3 Phill. R. 264.
(i) lb. 262.

refused at the petition of the proctor, whose appointment was extinct, to direct the costs incurred by the wife to be paid by the husband.(k) Costs were taxed de die in diem between husband and wife, though she had a separate income.(?)

Costs where Wife has Separate Estate.]-In a suit for restitution of conjugal rights, the wife having a separate property of her own, is liable to pay her own costs.(m) When the wife has separate means, which the court deems sufficient for her defence and subsistence, she is not entitled to alimony nor costs during suit; she then stands on the common footing of a litigant party, and on proving her case has a prima facie right to costs. It is, however, discretionary with the court, on a consideration of all the circumstances, to relax the rule.(n) Where the facts were that the wife had the enjoyment of 1607. a year, and the husband could only do occasional duty as a clergyman, was frequently prevented from that by illness, and had no income or property whatever, neither costs nor alimony were allowed in a suit of separation by reason of cruelty and adultery brought by the wife against the husband. (o) So where there was almost an equality in the income of the parties, and the property of [ *535 ] the wife, which had been dissipated, was done so with her assistance, the court rejected an application on the part of the wife, in a suit brought by her husband for adultery, that she might be allowed to have her costs taxed against the husband during the proceedings.(p) A question of this kind was lately discussed; the estates of the husband were considerable, but much encumbered; he had however an income much greater than the separate income of his wife, which was derived from several sources. No application for alimony or costs had been made in the courts below, i. e. in the Consistory Court of London, or the Arches Court. In the Court of Delegates three bills of costs were brought in, and the proctor for the wife prayed to be heard on taxation. An act on petition was gone into, and the court finally acceded to the prayer of the wife, so far only as regarded the costs in the High Court of Delegates; but it was generally understood that the judges were much divided in opinion on the subject.(g)

It seems that it would be competent to the judge, in a case of gross fraud, to condemn the asserted wife in costs, at the termination of the suit.(r) This was done in a case where the costs were prayed in the libel, and the marriage was declared void on the ground of fraud practised upon a person of great imbecility of mind. (s) The court. refused to tax the costs of the wife against the husband, where he was possessed of no property whatever, and had been shortly before discharged from prison by an order of the Insolvent Debtors' Court, although the husband was not proceeding in forma pauperis, but

(k) Cheale v. Cheale, 1 Hagg. Eccl. R. 375.

(1) Westmeath, v. Westmeath, 2 Hagg. Eccl. R. Suppl. 133.

(m) Holmes v. Holmes, 2 Lee, 90. (n) D'Aguilar v. D'Aguilar, 1 Hagg. Eccl. R. 787.

(0) Davis v. Davis, 2 Hagg. Cons. R. 204, n.

(p) Wilson v. Wilson, 2 Hagg. Cons. R.

203.

(q) Westmeath v. Westmeath, cited 2 Lee, 93, n. (a).

(r) 1 Lee's R. 211, n. (a).

(8) Portsmouth v. Portsmouth, 1 Hagg. Eccl. R. 355. 374; ante, pp. 185-189. See 3 Addams, 63. 67.

declined, at his prayer, to fix any day for the hearing of the cause, the wife insisting upon the previous payment of costs. (1)

Security for Costs.]-In all cases the court may upon application made to it direct security for costs to be given by either [ *536 ] or all of the parties. (u) The wife cannot as a matter of

course enforce this rule in a matrimonial suit; and in a suit for separation for the husband's adultery, the court will not direct the husband to give security for costs, on suggestion, unsupported by affidavits, that he was going abroad.(x)

Appeal in respect of Costs.]-Whether an appeal will or will not lie from costs alone has occasionally been discussed in the ecclesiastical courts. There are dicta both ways, and perhaps different rules in different jurisdictions. The result of the cases is, that there is no absolute rule, that the question is mixed up with and must depend on the whole circumstances; such appeals, however, are much discouraged, especially where they are of trifling amount, and evidently vexatious.(y) Costs in the courts below were not allowed to be taxed in the Court of Appeal as between husband and wife, or before sentence as between party and party. (2) On an appeal from a grievance, the court of appeal cannot enforce the payment of the costs incurred in the inferior court.(a)

It is the policy of the law to protect both parties-respondents as well as appellants-from useless litigation; and no party should be excited to appeal without the ordinary check at least of his own costs, and possibly those of the respondents. The court therefore will discountenance an agreement on the part of the proctor to accept only disbursements from his client as an inducement to appeal.(b)

Of Appeals.]-Every subject has a right to appeal, and every superior court enabled by law to hear and determine such appeal is obliged to receive the same, and after such appeal duly made, the inferior court is restrained from proceeding *any further [ *537 ] in the cause.(c) The consistory court of each archbishop, and every bishop of every diocese within this realm, is holden before the bishop's chancellor in the cathedral church, or before his commissary in places of his diocese far remote and distant from the bishop's consistory. The bishop's chancellor or his commissary is the judge, and from his sentence an appeal lies by stat. 24 Hen. 8, c. 12, to the archbishop of each province respectively.(d) The diocesan courts take cognizance of all matters arising locally within their

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respective limits, with the exception of places subject to peculiar jurisdiction.(e) They may decide all matters of spiritual discipline, and they may declare marriages void, pronounce sentence of separation a mensa et thoro, try the right of succession to personal property, and administer the other branches of ecclesiastical law.(ƒ)

Order of Appeal.]-In maintenance of the ancient law of the land, and the statutes(g) often made to support it, the stat. 24 Hen. 8, c. 12, declared that all causes of matrimony and divorces should be heard and finally determined within the king's jurisdiction and authority and not elsewhere, notwithstanding any inhibitions, appeals, or other process from the see of Rome or elsewhere. The order of appeal was directed to be in the following manner: from the archdeacon or his official to the bishop of the diocese, from the bishop or his commissary to the archbishop of the province, from the archdeacon of any archbishop or his commissary to the court of arches or audience of the same archbishop, and from the court of arches or audience to the archbishop of the same province. All these respective appeals were to be within fifteen days after judgment or sentence, and such as were before the archbishop were to be determined without any further appeal.(h) But, as we shall presently see, there is a further appeal to the privy council.(i)

*Though the regular appeal from a jurisdiction not peculiar but subordinate is to the diocesan, yet if the judge [ *538 ] of the subordinate and diocesan courts be the same person, the appeal

(e) See post, p. 538. 540.

(f) Rep. Eccl. Comm. 12.

shall have and exercise full and equal jurisdiction within their respective archdeacon

(g) See Reeves's Hist. of Law, vol. ii. 157. ries, any usage to the contrary notwithstand

376. 379; vol. iii. 162. 164.

(h) 24 Hen. 8, c. 12, ss. 5-8.

(i) See post, p. 544. In pursuance of the recommendations of the ecclesiastical commissioners for England, contained in their several reports, dated 17 March, 1835; 4 March, 20 May and 24 June, 1836, provisions are in progress for altering the bounds of several dioceses. The ecclesiastical commissioners of England may bring schemes before the king in council for carrying into effect these recommendations, and such commissioners are authorised to propose that all parishes, churches or chapelries, which are locally situate in any diocese, but subject to any peculiar jurisdiction, other than the jurisdiction of the bishop of the diocese, in which the same are locally situate, shall be only subject to the jurisdiction of the bishop of the diocese, within which such parishes, churches, or chapelries are locally situate. 6 & 7 Will. 4, c. 77, s. 10. Such scheines may be ordered in council to be carried into effect, registered and gazetted, and when registered and gazetted, such orders shall have full effect for all purposes. Copies of the orders are to be laid before parliament. 6 & 7 Will. 4, c. 77, ss. 12, 13, 14, 15.

By 6 & 7 Will. 4, c. 77, s. 19, all archdeacons throughout England and Wales AUGUST, 1841.-2 B

ing.

The stat. 6 & 7 Will. 4, c. 77, s. 20, after reciting that it may be expedient to consider the state and jurisdiction of all the ecclesiastical courts of England and Wales, enacts, that nothing therein contained, nor any order in council made under that act, either for altering the limits of either of the existing provinces, or the boundaries of any existing diocese or archdeaconry, or for uniting any existing sees, or for creating any new bishop. ric or archdeaconry, or for appointing any registrar, or for any other purpose whatever, shall for one year after the passing of that act, or if parliament should be then sitting, till the end of the then session of parliament, in any manner affect the jurisdiction, power or authority of any or either of the existing ecclesiastical courts in England or Wales, or the extent or limits thereof; but that during such period as last aforesaid, every such court shall continue in all matters whatsoever arising within its present limits to exercise the same jurisdiction as theretofore by law allowed. These temporary provisions have been continued from time to time, and are now extended until the 1st August, 1840; and if parliament shall be then sitting, until the end of the then session of parliament. 2 & 3 Vict. c. 55, s. 1.

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