question sometimes arises as to whether the master can be compelled to return his report until his fees have been paid, or, in other words, whether he has the right to "retain his report as security for his compensation." The practice in this regard is also different in different jurisdictions. Under the practice in Illinois the only method of compelling a master to surrender his report is for the party interested in its return to go into court, and, by a proper motion, obtain an order fixing the amount of the master's compensation, and then pay, or at least tender, the amount so fixed, after which the court may compel the master to return his report. Until this is done the master cannot be compelled to return into court the evidence given before him at the instance of a party, without paying him for taking it. An officer is entitled to his pay for his services as he renders them. In the federal courts, however, the practice is different; there the master having no right to insist upon his compensation being paid before returning his report. This is expressly provided for by Equity Rule No. 82, as follows: "The master shall not retain his report as security for his compensation; but, when his compensation is allowed by the court, he shall be entitled to an attachment for the amount against the party who is ordered to pay the same, if, upon notice thereof, he does not pay it within the time prescribed by the court." Under this rule, and also rule No. 83, it is the duty of the master, "as soon as his report is ready," to "return the same into the clerk's office," no matter whether his fees are paid or not. If his compensation is not paid, his remedy, under these rules, is to have the same fixed by the court and then collect by attachment." The same course of practice, it seems, obtains in Pennsylvania, it being there held that a master has no right to retain his report Pr. 253; Livermore v. Bainbridge, 44 How. Pr. 357, 47 How. Pr. 354; Marie v. Garrison, 1 How. Pr. (N. S.) 32; Devlin v. Mayor, 7 Daly, 466; Carroll v. Lufkins, 29 Hun, 17; Burrows v. Dickinson, 35 Hun, 492; O'Brien v. Long, 49 Hun, 80. 1 Brown v. Mortgage Co., 110 Ill. 235; Rickert v. Suddard, 184 Ill. 149, 153; Schnadt v. Davis, 185 Ill. 476, 483, 484; Nutriment Co. v. Green Lumber Co., 195 Ill. 324. 2 Rimmer v. O'Brien-Green Co., 64 Ill. App. 104, 107. 3 People v. Rockwell, 2 Scam. 3; People v. Harlow, 29 Ill. 43. 4 Rule as amended April 16, 1894, 152 U. S. 709; 3 Desty's Fed. Proc. 1800. 5 Frese v. Biedenfeld, 14 Blatch. 402, Fed. Cas. 5,111. for his compensation, much less to refuse to proceed. The rules provide an effective remedy which he must follow. If he abandons his duty in the midst of proceedings he forfeits all compensation for services rendered.1 III. OF COSTS GENERALLY IN CASE OF A REFERENCE. § 641. Discretion of court-Apportionment of costs.- In equity costs do not always follow the decree; but, unless otherwise provided by statute, are in the sound discretion of the court, and are to be awarded or refused according to the justice of each particular case; yet in general the prevailing party is entitled to costs in equity as in law. The discretion of the lower court in fixing fees not regulated by the statute will not be disturbed, unless there has been an abuse of such discretion. Appellate courts are generally not disposed to disturb the findings of lower courts in the matter of compensation for services of trustees, solicitors, receivers and masters rendered in the conduct of litigation in said courts, whether based on findings of masters or verdicts of juries, unless injustice clearly appears, for the reason that the court below should have considerable latitude of discretion on the subject, since it has far better means of knowing what is just and reasonable than an appellate court could have. The upper court will reluctantly disturb an order relative to costs or master's fees "when much must rest largely in the discretion of the court below." In the apportionment of costs in a chancery proceeding, where the question at issue is a novel one and the parties are acting in good faith, the court may require each party to pay his own costs, or make such other order as may be deemed equitable; and in this regard the fee of a master, as well as 5 1 Huddy v. Caldwell, 6 W. N. C. 448. 2 White v. Walker, 5 Fla. 478, 503; Gage v. Gowdy, 141 Ill. 215, 30 N. E. 320; Waterman v. Alden, 144 Ill. 90, 32 N. E. 972; Rogers v. Tyley, 144 Ill. 652, 32 N. E. 393; Tearney v. Fleming, 48 Ill. App. 507; Citizens' Ins. Co. v. Hamilton, 48 Ill. App. 593. Whitney v. City of New Orleans, 54 Fed. 614, 617; Trustees v. Greenough, 105 U. S. 527, 537; Head v. Hargrave, 105 U. S. 45; Cowdrey v. Railroad Co., 1 Woods, 331, Fed. Cas. 3,293. 4 Finance Company v. Warren, 53 U. S. App. 472, 82 Fed. 525. 5 Snyder v. Stafford, 11 Paige, 71. other costs in equity, are within the discretion of the court where the suit is brought. That court has not only the power to fix the costs, but also to make any proper order for their payment, and, when the master has made application to that court for an order on the party liable to pay his fee, he will not be permitted to bring assumpsit therefor in the commonlaw court, on the ground that the chancery court has delayed such order. There may be reasons, deemed sufficient by that court, to justify it in postponing or refusing such application. The common-law court could know nothing of this; besides, it would be an anomalous proceeding for a court of law to take up the matter where a court of chancery had already taken cognizance of it. The latter court is fully competent to attend to its own business.1 In a case of accounting the court in apportioning the costs may and should take into consideration items of account "won and lost" by the respective parties and make such order as shall seem equitable. In passing on this question Wheeler, J. (U. S. C. Ct. D. Vermont), said: "Both parties have prevailed and failed to some extent upon the items disputed and litigated, and far enough so that an apportionment of costs seems proper. Upon consideration of the items in dispute won and lost by the respective parties, and the time and expense probably spent upon each, it seems most just that the orator be allowed five-sevenths of his costs, and the defendants two-sevenths of theirs." 2 The question of costs frequently arises upon the allowance or disallowance of exceptions to the master's findings. In passing upon this question it is proper to keep in mind the rule that the allowance of costs is always discretionary in chancery cases. Chancellor Kent, in speaking of this subject, says: "The allowance of costs is no doubt discretionary in this, as in other cases; but I think, it will, upon the whole, be most equitable and just to follow the rule which I have adopted in other cases, arising upon exceptions to reports, and allow to each party the costs on the exceptions in which he has been successful." Yet, as the whole question as to costs is discre tionary, the court will enforce this rule or depart from it as 1 Woodward v. Brace, 139 Pa. St. 316, 20 Atl. 1001. 3 Methodist E. Church. v. Jaques, 2 Johns. Ch. 77, 117; Green v. Winter, 2 Bridges v. Sheldon, 7 Fed. 17, 42. 1 Johns. Ch. 26, 43, 7 Am. Dec. 475. equity may require;' but the general rule is that each party recovers costs on those exceptions on which he succeeds and pays costs on those upon which he fails. The rules of court should provide that in all cases where the objections and ex ceptions of a party are held to be frivolous, or taken for delay only, he should pay all costs incurred thereby. Such an order, properly enforced, would save parties and litigants vexatious delay, and prevent the wasting of the time of the court. Lord Bacon's rule, if rigidly enforced, would bring about a reform in this regard: "In all suits where it shall appear upon the hearing of the cause that the plaintiff had not probabilem causam litigandi, he shall pay to the defendant his utmost costs to be assessed by the court.' The United States Equity Rule No. 84 goes even farther than this, by making the exceptant pay the cost of every exception overruled, and the other party of every exception allowed. This rule governs in the federal courts, and is as follows: "In order to prevent exceptions to reports from being filed for frivolous causes, or for mere delay, the party whose exceptions are overruled shall, for every exception overruled, pay costs to the other party, and for every exception allowed shall be entitled to costs, the costs to be fixed in each case by the court by a standing rule of the circuit court." It has been held that a solicitor's fee is not a cost within the meaning of this rule." § 642. Discretion of court-Apportionment of costsContinued. While it is true that in chancery cases costs, as as rule, are in the discretion of the court, this does not mean an arbitrary discretion, but, on the contrary, in apportioning the costs, or in determining a party's right to recover costs, or his liability to pay the same, the court has no right to disregard well recognized rules applicable to such questions, but, in forming its conclusions, will be guided or controlled thereby For example, unless there is some good reason to the contrary, the winning party is entitled to recover his costs from his adversary; and, in speaking of the court's right to apportion Methodist E Church v. Jaques, Johns. Ch. 77. 1 For a modified application of the rule see Stoughton v. Lynch, 2 Johns. Ch. 209, 223. 2 Hunn v. Norton, Hopk. Ch. 344; Norton v. Whiting, 1 Paige, 578; 3 Beames' Orders in Ch., p. 24. 5 Garretson v. Clark, 17 Blatch 256, Fed. Cas. No. 5,249. costs in such a case, it is meant that, for good cause shown, the court may depart from the rule by requiring the winning party to pay a portion of the costs. Thus, a party who succeeds in a substantial particular on exceptions to a master's report is, as a general rule, entitled to recover his costs in such proceeding; yet the question submitted to the court by the exception may be such a novel one, and the good faith of the party presenting it so apparent, that in justice the costs should be divided by compelling the winning party to pay a portion of the same. Again, the winning party's conduct may have been such as to render it inequitable that his defeated adversary should be required to pay all the costs. For example, the winning party may have persisted, against the objection of his adversary, in taking a mass of immaterial testimony. The materiality of testimony is to be determined by the issues as made by the pleading, and where a party insists on taking a mass of evidence upon matters not in issue, he should be required to pay the cost of taking the same, irrespective of the result of the litigation. As the question of costs is always within the discretion of the chancellor, he should discourage this too common practice by making the guilty party pay the penalty. Therefore, while the rule is as stated, that the losing party should pay the costs, we see that it is always competent for him to show circumstances to satisfy the court that it would be inequitable to require him to do so.1 IV. STENOGRAPHER'S CHARGES. § 643. Fees of stenographers-Whether taxable as costs. The question sometimes arises whether the charges of a stenographer, for services in case of a reference, are taxable as costs; and the answer, in the absence of a statutory provision or rule of court permitting it, seems to have been uniformly in the negative. Thus, in the United States district court, district of Vermont, the question arose as to the right to tax up 4 Walling v. Kinnard, 10 Tex. 508, Locke, 48 Me. 425. |