Sometimes, where no part of the bill is dismissed, but a decree is made upon the whole of it, the Court will order the costs of the suit, up to a certain period, to be borne by one party, and the remainder by another. Thus, in suits for specific performance, where a vendor does not make out his title until after the bill is filed, he will be liable to pay the costs of the suit, up to the time when he showed a good title.1

And so where the vendor established his title subsequently to the decree, after a contest, upon a different ground from that in the abstract delivered, the Court decreed the costs of the inquiry, and of the several applications which were made to the Court, to the purchaser.2

So also, in matters of account, the Court will frequently apportion the costs between the plaintiff and defendant.3

It may be mentioned, in this place, that where, in a cause, the costs are apportioned between the plaintiffs and the defendants, the Court will generally so arrange them, that they may be set off one against the other, and that the balance only shall be paid by the party, from whom, upon setting off such costs, it shall appear to be due.1 The Court will also, where there are sums of money to be paid, as well as costs, arrange the demands of each, so as to do justice to all.5

Thus, in a suit for the administration of assets, in which, according to the common course of the Court, all the parties are

suit are decided against one party, he will not be entitled to costs of an issue out of the Court, decided in his favor. Stewart v. Famler, 1 Harp. Ch. 261.

1 See ante, p. 1005; 3 Sugd. V. & P., ed. 1840, 140, pl. 13, ib. 143, pl. 23; and see Townsend v. Champernowne, 3 Y. & C. 505, Exch. Rep.; Harford r. Per rier, 1 Mad. 532; Wilson v. Allen, 1 J. & W. 623; Wynn v. Morgan, 7 Ves. 202; Collinge's Case, V. & B. 143, n.; Lewin v. Guest, 1 Russ. 328; Wilkinson Hartley, 15 Beav. 187; Winne v. Reynolds, 6 Paige, 407; Platt v. Squire, 3 Cushing, 551.

2 Fielder v. Higginson, 3 V. & B. 140.

3 Anon., 4 Mad. 273, and see Beames on Costs, ed. 1840, p. 7.

4

Upon exceptions to a Master's report, each party is entitled to the costs f the hearing, as to the exceptions decided in his favor; which costs may be set off against each other. Richards v. Barlow, 1 Paige, 323. Thus, where part of the exceptions are allowed, and the rest disallowed, the costs to which the respec tive parties are entitled may be set off, or a proportionate share of the costs only may be allowed to the party who succeeds as to a majority of the excepti Norton v. Woods, 5 Paige, 260. See Simpson v. Brewster, 9 Paige, 245. 5 Taylor v. Popham, 15 Ves. 72. See Battle v. Griffin, 5 Pick. 167.

entitled to have their costs out of the fund, a party who was a debtor to the estate was not allowed to receive payment of them, whilst his debt remained unsatisfied; but the costs due to him were ordered to be set off, pro tanto, against the debt due from him.1

It is to be observed that, in the above cases, the costs and the duty were respecting matters in the same suit. But it is not the practice of the Court to set off costs of one suit, against the costs or costs and duty due to the party to pay them from the person who is to receive them in another,2 unless the two suits are consolidated, so that one order can be made in both.

Where a party is entitled to costs, he should take care and apply for them at the hearing, or at any rate before the decree has been passed, as, after a decree has been passed, the Court will not, on petition, give the costs of the suit to a party, although he was a mere trustee, and as such would have been entitled to them, as a matter of course, if asked for at the hearing. Where, however, a trustee did not appear at the hearing, and consequently a decree nisi was made against him, without making any provision as to his costs, whereupon he set the cause down again, upon payment of the costs of the day, Lord Kenyon said, the payment of the costs of the day, made the trustee "rectum in curia," and as he would most unquestionably have been entitled to his costs, if he had appeared at the original hearing, so he now stood in the same situation, and was therefore entitled to receive them.4

Before leaving the subject of costs as between party and party, it should be stated, that when the costs are decreed to be taxed simply, they mean as between party and party. If the costs are taxed as between solicitor and client, or if any costs, charges and expenses, not strictly costs of suit, are to be allowed on the taxation, or in any respect to vary from taxation as between party and

1 Harmer v. Harris, 1 Russ. 155; Shine v. Gough, 2 V. & B. 33. See, however, Samuel v. Jones, 2 Hare, 246; Cotton v. Clark, 16 Beav. 134.

2 Wright v. Mudie, 1 S. & S. 266; Holworthy v. Mortlock, 1 Cox, 202; 2 Bro. C. C. 17; Collett v. Preston, 15 Beav. 458.

3 Colman v. Sarell, 2 Cox, 206; Travis v. Waters, 1 John. Ch. 85; S. C. 12 John. 500; Temple v. Lawson, 19 Ark. 148.

♦ Norris v. Norris, 1 Cox, 183.

party, they should be expressed in the decree.1 There is also this distinction in the practice, that when costs are payable out of a fund in Court, they are ordered to be paid to the solicitor of the party, but in other cases they are always ordered to be paid to the parties themselves.2

SECTION III.

Of Costs out of the Fund.

In the last section an attempt has been made to point out some of the principles by which the Court is governed in awarding the costs of a suit, in cases in which the subject of litigation, not being a fund or estate under the administration of the Court, the costs must necessarily be taken out of the pocket of one party, to be paid into that of another. We shall now proceed to the consideration of those cases, in which an estate, whether real or personal, being the subject of litigation, the Court will order the costs of the suit, or those of some of the parties to it, to be defrayed out of the fund or estate.3

It is a rule, that trustees, agents and receivers, accounting fairly, and paying their money into Court, are entitled to their costs out of the estate, as a matter of course; and the same rule extends to personal representatives, with regard to whom, as the decisions of the Court show that they can only obtain complete exoneration by having their accounts passed in this Court, the Court will give them every opportunity of exonerating themselves, by passing their accounts at the expense of the estate.

This rule is not confined to cases in which they are brought be fore the Court as defendants; it is a general principle, that trustee has a right to the protection of the Court, in the execution of his trust; he is therefore entitled to his costs, whether he 1 1 Seton, Decrees (3d Eng. ed.) 92, 93.

Ibid.

See Peck v. Stimpson, 20 Pick. 312; Frost v. Belmont, 6 Allen, 164, 165. * Attorney-General v. The City of London, 1 Ves. jr. 246; 3 Bro. C. C. 171 Rashley v. Masters, 1 Ves. jr. 105; Samuel v. Jones, 2 Hare, 246; Decker v. Miller, 2 Paige, 149; Knox v. Picket, 4 Desaus. 199; Connolly v. Pardon, 1 Paige, 291; Floyd v. Baker, 1 Paige, 480.

See Knatchbull v. Fearnhead, 3 M. & C. 122.

comes before the Court as plaintiff or defendant, unless the act required to be done leads to no responsibility, or his motive is obviously vexatious. And a trustee fairly instituting a suit for the direction of the Court, with regard to the trust, will not only be entitled to his own costs out of the fund, but any person made a party to the suit, for his protection, will also be ordered his costs. from the fund; thus, where a bill was filed by trustees, for the direction of the Court as to the application of a trust fund, in the course of which a dispute arose between the two defendants, whether one of them was illegitimate, and the Master found that he was legitimate, the other was allowed his costs out of the trust fund.2 Lord Langdale, M. R., says: I cannot conceive that anything could be more hard than that executors, who are called in to administer estates, where there are doubtful questions arising on the will, and who can be exonerated only by having their accounts passed in a Court of Equity,3 should be deterred from coming to this Court, by being visited with the costs of the proceedings.4

Where, however, the act required to be done by a trustee, leads to no responsibility, or his motive is obviously vexatious, he will not be allowed his costs; thus, where trustees under a will refused to pay a legacy to the assignees of a bankrupt, merely because the bankrupt himself had set up a claim to it, their costs of the suit were refused, because the case was too clear to admit of a doubt.5

So, where a trustee, from caprice or obstinacy, occasions a suit which would otherwise be unnecessary, he will not be allowed the costs of it, whether he appear in such suit in the character of defendant or of plaintiff; thus, where a person having in his hands a sum of money belonging to an infant, instituted a suit, to have that sum secured for the benefit of the infant, though there was a trustee of a settlement, to whom it ought to have been paid, and 1 Curteis v. Candler, Mad. & Geld. 123; Noble v. Meymott, 14 Beav. 471; Hosack v. Rogers, 9 Paige, 461; Chase v. Locherman, 11 Gill. & J. 185. 2 Hicks v. Wrench, Mad. & Geld. 93.

3 See Knatchbull v. Fearnhead, 3 M. & C. 122.

Knox v. Picket, 4 Desaus. 199; Morrell v. Dickey, 1 John. Ch. 153; Moses v. Murgatroyd, 1 John. Ch. 473; Dunscomb v. Dunscomb, 1 John. Ch. 508; Goodrich v. Pendleton, 3 John. Ch. 520; Warden v. Burts, 2 M'Cord Ch. 76; Wright v. Wright, 2 M'Cord Ch. 191; Delafield v. Colden, 1 Paige, 139; Pritchard v. Hicks, 1 Paige, 270; Hosack v. Rogers, 9 Paige, 461; Armstrong v. Zane, 12 Ohio, 287.

who was willing to receive it, his costs out of the fund were refused.1

Although trustees, or other persons standing in that character, are, as we have seen, generally held entitled to their costs out of the estate, yet they will not be permitted unnecessarily to burden the fund, by costs which they might have avoided; thus, although two or more trustees, having a fiduciary character, may, notwithstanding they employ separate solicitors, and put in separate answers, have each his costs,2 yet they will not be allowed to make use of this privilege in an oppressive manner; and, therefore, where a trustee, who had not acted, put in a full answer to the whole bill, an order was made at the hearing, to tax him the costs of such answer only as would have been necessary and proper.3

Trustees and personal representatives brought into Court will not be deprived of their costs, because they make a claim for their own benefit and fail, when the suit is not instituted for their individual benefit, or when no additional costs are caused by the claim; but where a trustee has a private interest of his own, separate and independent from the trust, and obliges the cestui que trust to come into this Court, merely to have the point relating to his own private interest determined at the expense of the trust. Upon this ground, where on a bill filed for a residue, the defendant, the executor, by his answer, stated declarations of the testatrix, that her other relatives should have no more than their

1 Ellis v. Ellis, 1 Russ. 368; in general, where a trustee, through his neglect or obstinacy, occasions the suit, he will be ordered to pay the costs of it; see post. Thorby v. Yeats, 1 Y. & C. 438. Where heirs, executors, or administrators, bring groundless or vexatious suits, they will be ordered to pay costs. Getman v. Beardsley, 2 John. Ch. 274.

2 See Reade v. Sparkes, 1 Moll. 10; Aldridge v. Westbrook, 5 Beav. 212 For the rule as to costs, where they employ the same solicitor, yet put in separate answers, see ante, pp. 742, 743, and 27th Order of 1828.

3 Martin v. Persse, 1 Moll. 146; Blount v. Burrow, 3 Bro. C. C. 90. Rashley v. Martin, 1 Ves. jr. 205. Thus, where an executor, who is n debted to the estate, has a right to ask the aid and protection of the Court in paying over the money due by him, he will be entitled to his costs out of the fund. Decker v. Miller, 2 Paige, 149. So, if the executor, who was a creditor of the estate, had a right of preference over other creditors, and was compelled to come into Chancery to obtain such preference, his costs will be paid out of the fund. Ibid.

Henley v. Philips, 2 Atk. 48; Dupont v. Johnson, 1 Bailey Eq. 279; Gard ner v. Gardner, 6 Paige, 455; Hunn v. Norton, 1 Hopk. 344.