TAXABLE COSTS.

HON. T. A. E. WEADOCK, of Detroit.

Mr. President and Gentlemen of the Michigan Bar Association:

When your President honored me by inviting me to read a paper at this meeting I accepted promptly and its preparation seemed easy because performance was so far in the future, and you know how easy it is to resolve at New Year's day and how hard it is to perform during the year.

It is somewhat discouraging at the outset to remember how slowly any reform of legal proceedure makes its way, notwithstanding the merit of the idea advanced. A notable instance of this is the very able and useful paper on the circuit judicial system of Michigan, read at the last meeting of this Association. Since that time a legislature has been elected, met, neglected to remedy the system, adjourned and followed its predecessors to the limbo-where such legislatures go, but nothing was done. In fact the laws enacted by it, which we should have within ten days, are not published yet.

Complaints of the law's delay are very ancient, and although the iteration and reiteration of them has grown tiresome, the only way in which reforms can be brought about is to get a sufficient number of people thinking about the same thing in the right way, at the same time.

Your attention for a short time is invited to the subject of taxable costs, and the reform I advocate is the rule of the Civil Law: "Victus victori in expensis condemnatus est." The vanquished is to be condemned in costs to the conqueror.

It is not intended to deal with the large class of cases where costs are to be paid out of the fund as in bills of inter-pleader, nor where the party or his attorney creates or recovers the fund, for the benefit of a class, out of which suitable costs are paid, nor to proceedings by or against the state or nation when other considerations prevail.

These may be briefly referred to, such as cases where an attorney for a creditor brings a suit in behalf of himself and other creditors and is allowed compensation out of the fund realized for creditors generally, if his services prove beneficial to them, and it was held in a Tennessee case, Campbell v. Provident Savings and Loan Society,That the fund reached by a general creditors' bill if all absorbed by prior claims not secured by mortgage or other fixed lien so that the one who instigated it will receive nothing, will not prevent the allowance of a reasonable fee for his solicitor out of the fund, since the work was done for the benefit of all the creditors; and it may be stated as a general propositon that the fees of attorneys for creditors

who bring suit in behalf of themselves and other creditors will always be allowed out of the fund going to creditors in the same class as the plaintiff if the suit is beneficial to them, on the ground that otherwise the one assuming the risk and conferring the benefit would be in a worse position than those who do nothing towards realizing the funds.

No costs were allowed at the common law. They were first given by the Statute of Gloucester in the time of Edward I. and in this country it may be stated generally that in ordinary actions at law, costs are regulated by statute.

The limits of this paper will allow only one question to be considered and that is, what should be the taxable costs between party and party, in civil actions excluding equity generally, and admiralty, which generally follows the rule of the civil law, and criminal law, where in cases of innocent men acquitted on trial or discharged by the court, or subsequently found to be innocent, the injustice is even more rank than in civil actions.

We are all familiar with the delay and necessary loss under the present law and practice of enforcing rights or defending them in courts. Terms of court, time allowed for filing papers, medieval methods of subpoenaing witnesses, delay and uncertainty in the time of trial, paying all witnesses the same compensation, etc., leads to the avoidance of courts, and to other methods of avoiding loss in business transactions, such as adding a percentage to wholesalers' and retailers' prices to cover prospective losses, and making the honest man who pays, a guarantor who pays in advance the share of the dishonest, worthless and unfortunate.

In such cases the creditor is indifferent because he has really lost nothing, the irresponsible debtor is indifferent for several reasons, and those responsible for legislation, do nothing to remedy the evil. Is this because the laws are made by and for debtors? Why should a man be compelled to pay out of his own means for the necessary resort to the courts to recover what belongs to him? If a debtor owes him a hundred dollars, why should he pay $10 to a lawyer to try his case, say $15 or possibly $25 to prepare for trial and be allowed to recover nothing beyond $10 as costs? Why should he submit to injustice and wrong because justice costs so much? The answer is that justice should be made speedier and cheaper, and the man who disputes a debt, or withholds what belongs to another, or commits an injury either carelessly or intentionally, must completely indemnify the other party, under the supervisory control of the court.

If it be said that statutes have been passed in Michigan along this line, which have been held unconstitutional, such as the Law of 1885, Act 234, p. 354, when in amending the railroad law the legislature undertook to compel railroad companies to pay an attorney fee of $25 "before any court of competent jurisdiction" in case any damage was

done to cattle, on account of improper construction of cattle guards, etc., the answer is, this was held unconstitutional in the case of Wilder v. Chicago and West Michigan Ralway Co., 70 Mich. 382, for the reason that "the legislature cannot make unjust distinctions between classes of suitors without violating the spirit of the constitution. Corporations have equal rights with natural persons as far as their privileges in the courts are concerned." Judge Morse proceeds in the opinion to show the injustice of punishing one party for defending itself in the court, without subjecting the other parties to the same law, and he speaks of penalties in the disguise of costs. This reasoning would not obtain if the law had allowed an attorney fee to the railway company in case of a successful defence.

This case has been followed many times, and was distinguished in the case of Lagoo v. Seaman, 136 Mich. 418, which was a proceeding under the log lien act, where the supreme court held, "This reasoning has no applicaton to this case. To allow suitors in proceedings under a special statute to recover their full costs is by no means an unjust discrimination because suitors under other cases are denied that." Citing Dibell v. Brinkerhoff, 22 Mich. 371.

In the Wilder case Judge Morse cited Calder v. Bull, 3 Dall. 386. That, however, was a case which went up on error from the state of Connecticut and involved the questions of granting a new trial by act of the legislature, ex post facto law, and taking private property for public use, and in my judgment is not close enough to the question in hand to be considered in point.

The other case cited by our supreme court, Durkee v. Janesville, 28 Wis. 464, is another authority for the proposition that an act making discrimination between the rights of different suitors in the court of justice is void under the constituion of that state, Sec. 9, Art. 1, which provides:-"Every person is entitled to a certain remedy under the law for all injuries he may receive in his person, property or character and ought to obtain justice freely and without being obliged to purchase it, completely and without denial, etc., etc."

Under our statute we can tax costs for a witness only from the state line if he comes from beyond the jurisdiction. Lawyers know how essential it is in most cases, to have the witness in court. Why should a party be compelled to bring the witness a long distance at his own expense, to defend or maintain his action, when he knows that the expense he pays beyond the jurisdiction is an absolute loss. The party should have the right under the law to prosecute or defend his action, without loss, if he has the right on his side. In a recent case in Canada involving a mining fraud in the Klondike, witnesses were brought from that place to Windsor, and the expense was taxed against the losing party.

The reform here advocated is not an untried remedy. England and Canada both use it and have done so for years, but the limits of

this paper will allow only a brief reference to their system.

In England costs in its proper and restricted meaning is such sum or money as the court or judge orders an unsuccessful litigant to pay to his opponent to compensate the latter for the expense and inconvenience to which he has been put by the litigation. The sum so awarded seldom fully compensates the successful party, as he may incur more expenses than are really necessary. The court may allow a lump sum without taxation, but in all ordinary cases he directs that costs shall be taxed, and the amount allowed on taxation is called taxed costs. The difference between the taxed costs and the amount which the successful party pays to his attorney or solicitor is known as extra costs, and this the successful party must pay out of his own pocket.

Sometimes, however, the court or judge orders that the costs payable by one party to another should be taxed as between solicitor and client, which is a more liberal scale.

Costs in chancery, as with us, are in the discretion of the court, but the discretion is exercised. Various statutes aside from the rules and orders of the court regulate this general question of costs.

In England, party v. party costs are given by way of indemnity. Gundy v. Sainsbury, 1910, 1 K. B. 33.

In Canada the Supreme Court may fix fees and costs to be taxed and allowed to and received and taken by, and the rights and duties of the officers of the court, according to the statute. Chapt. 139, Sec. 109 c., R. S. of C. 1906.

Costs of a client in an action are the sums which he has paid or which he owes, to his solicitor or to his counsel or to witnesses or to others for services rendered therein.

Panton v. Winnipeg, 41 C. S. R. 366.

In England there are two general scales of costs, the higher and the lower. The lower scale involves amounts from two to ten pounds, where no costs are allowed except court and witness fees unless ordered by the judge. The higher scale is subdivided into three schedules depending on the amount claimed or value of the property in controversy. These schedules are

"A" for amounts from ten pounds to twenty pounds, "B" from twenty pounds to fifty pounds, and

"C" over fifty pounds.

Unless otherwise ordered by the judge, the costs are taxed according to one or another of these schedules. If, however, the action involves any novel or difficult proposition of law, or one affecting a large class of people, the judge may so certify in accordance with the statute, and order that costs be taxed under a higher scale than the amount involved warrants. Application to tax costs must be made at

once unless delayed for sufficient reason, and the order and certificate of the judge must be entered on the minute book for the day when it is granted.

The judge has discretion to disallow costs in case of unnecessary matter and the party against whom such costs are disallowed may be required to pay the other party's costs occasioned thereby.

Various statutes cover the amounts taxable for different items, but the limitations of this paper prevent any enumeration of them; suffice it to say that a large discretion is reposed in the court in deciding which of the rules of costs apply, and any or all of the various fees may be allowed if the costs are reasonably and properly incurred in prosecuting or defending the action.

Travelling expenses to all witnesses and plaintiff that are reasonably and actually paid by them are allowed. If a case is not reached or is adjourned and they come to court more than once, travelling expenses, etc., are allowed for each time in attendance. If they are in attendance more than one day, daily attendance for each day is allowed. The expenses and first day's attendance should be paid on service of subpoena.

The plaintiff is allowed witness fees only for travel, unless he is a menial or domestic, laborer, servant in husbandry, artificier, handicraftsman, or person engaged in manual labour, or unless the judge in a particular case order it. If a witness is attending for more than one cause, then the costs are apportioned.

The costs of witnesses, whether examined or not, if they attend, may be taxed in discretion of the judge, though they were not summoned. The judge must consider each case and cannot make a general order that the costs of witnesses not examined be disallowed, unless otherwise ordered.

Costs are taxed in three ways, 1st, as between party and party; 2nd, as between solicitor and client, and third, "as costs, charges and expenses."

As between party and party costs are taxed by the registrar or clerk of court where they are incurred, and must be sanctioned by the scale then in force.

As between solicitor and client, the solicitor can recover only as per the scale in force, except where the client agrees in writing to pay more. Such costs are taxed by the registrar on application of one of the parties. The discretion of the registrar under the scale must be carefully and discriminatingly used, and strictly within the instructions of the scale and rules.

Costs must appear to the registrar to be necessary, right and proper and not incurred because the mere desire of the successful party or through over caution, negligence or mistake.