John Beaumont, C.J.
1. This is an application made under Rule 132 of the Appellate Side Rules complaining against the order of the Taxing Officer.
2. The point raised is a novel one. In a second appeal the respondent appeared by an attorney and an advocate on the Original Side; that is to say, the advocate on the Original Side was instructed by an attorney who was not an advocate on the Appellate Side. The appeal was dismissed with costs, and the contention of Mr. Moropanth for the applicant is that in such a case no costs are payable either to the attorney or to the advocate on the Original Side. It is very common for parties to appear in Appellate Side matters by an attorney instructing an advocate on the Original Side, and it is somewhat startling to hear it suggested that in such an event no costs are payable by the unsuccessful party either to the attorney or to the advocate. In my opinion, there is no substance in the point.
3. Under the Rules on the Appellate Side, Part II, relating to Legal Practitioners, it is provided in Rule 10 that no attorney, who is not also an advocate, shall address the Court; but such attorney may instruct an advocate. And then in Rule 5 it is provided that advocates on the Original Side may appear and plead for suitors on any side of this Court, but not unless instructed by an attorney, or on the Appellate Side by an advocate (which is only an alternative). So that it is quite clear that an attorney may instruct a counsel on the Original Side to appear on the Appellate Side of the High Court, and as the rules allow him so to do, it seems apparent that the attorney must be entitled to be paid, and must in the ordinary course have his costs taxed before he can recover them. Now Rule 128 of the Appellate Side Rules directs that where costs are awarded to a party in any proceeding the amount of the Advocate's fees to be taxed in the bill of costs recoverable by such party, if represented by an advocate, from his adversary, shall be computed in accordance with the rules in Appendix E, and then there is a provision that nothing contained in this rule shall apply to fees payable to advocates on the Original Side. It is argued, therefore, that that rule does not apply either to an attorney or to an advocate on the Original Side, and therefore no scale for taxing their fees has been laid down. If that be so, the taxing officer has a discretion as to the scale to be applied, and he exercises that discretion wisely in proceeding by analogy to Appendix E. The taxing officer says that the practice in the office is to tax the costs of the attorney on the scale allowed by Appendix E by analogy to that Appendix. That is to say, he allows the attorney the percentage costs specified in Appendix E, and the attorney makes his own arrangements as to the payment of the advocate who represented him. That is the course which the Taxing Officer says has prevailed for many years. It appears to me clearly to be the right course, and I can see nothing illegal about it.
4. In my opinion the order made by the Taxing Officer is right, and this application must be dismissed with costs.