1. This is an application to review the Taxing Master's taxation of the defendant's bill of costs.
2. The suit was for possession of certain immoveable property, and on February 6, 1923, a consent decree was passed directing the costs of both sides to be taxed between party and party. There was no order as to which side should pay the other party's coats, but it is admitted that there was an agreement by which the plaintiffs agreed to pay the defendant's costs of the suit. An order had been made prior to the decree directing the plaintiffs to pay the costs of a particular day including the fees for the attendance of witnesses on that day. The taxation before the Taxing Master lasted from October 4, 1922, to November 15, 1922. After the latter date there was a further taxation with regard to payments alleged to have been made to the witnesses amounting to Rs. 924 odd. The plaintiffs contended that the moneys had never been paid to the witnesses) and, if any such payment had been made, that it had found its way back to the defendant's pocket After no less than eleven meetings on this point before the Assistant Taxing Master and a large number of exhibits and books of account had been put in, he held on April 9, 1923, that the payments had not been made, or if they had, they were colourable payments and had come back to the hands of the defendant. The Assistant Taxing Master thereupon disallowed all the payments to the witnesses and ordered the defendant to pay the plaintiffs' costs after November 15, 1922. On April 16,1923, the defendant applied for a review of the taxation. In that application she took no objection to the order against her for payment of costs, On April 27, 1923, the warrant to review the taxation was heard and adjourned to June) 23, 1923. Prior to that date, however, on June 22, 1923, the defendant's attorneys wrote to the Taxing Master and the plaintiffs saying that they withdrew the application for review. On June 23, 1923, the Assistant Taxing Master noted the withdrawal of the review and adjourned the warrant to review only on the question of costs. On September 13, 1923, the defendant took out a fresh warrant to review the original taxation and objected to the order for payment of costs made by the Taxing Master on April 9, 1923. On September 29, 1923, the Taxing Master heard the second review and considered that the defendant was not entitled to file a second review but nevertheless ho held that he had no power to order the defendant to pay coats on April 9, 1923, and he directed the plaintiffs to pay the costs of the second warrant to review. The plaintiffs have come here on the Taxing Master's certificate of October 15, 1923, against that decision. They have also taken out a chamber summons in respect of the costs disallowed to them on the original taxation of the bill.
3. Now the procedure on the taxation of a bill in the taxing office is very simple. The bill is first taxed roughly by the clerks in the office and then more carefully by the Taxing Master. Thereupon a warrant to tax issues. On that the parties are heard and any party dissatisfied with the Taxing Master's decision takes out a warrant to review under rule 529. The parties are again heard by the Taxing Master and any party dissatisfied with his decision on the review applies for a certificate. With this certificate the Taxing Master states the grounds for his decision on the points on which a certificate is asked ::or. The matter then comes before a Chamber Judge for a review of the taxation
4. Generally, it may be laid down that on the warrant to tax the party taking the taxation must pay the costs of the proceedings on that warrant. But if the Taxing Master is of opinion the party bringing in the bill has unnecessarily or vexatiously increased the costs he may report accordingly and the Court, i. e., the Chamber Judge, will make such order as to those costs as he thinks fit. The proper procedure in such a case is by summons.
5. The costs of the warrant to review should follow the event on such review. I really see no reason why the Taxing Master should not have power, in a proper case, to award costs against the party taking out such a review. It is conceded that he has power to make such a party, if he be the party bringing in the bill, pay his own costs of the review. I see no reason why he should not have power to make him, in addition, in a proper case, pay the other party's costs.
6. In both cases it is equally an exercise of his discretion. If the party bringing in a bill is entitled to take out a warrant to review as part of the procedure necessary to the final taxation of the bill, then the Taxing Master has no more power to make him pay his own costs than he has on the warrant to tax. Nevertheless, as I have said, it is conceded the practice of the taxing office has been that the Taxing Master may make such party pay his own costs.
7. Applying these principles it is clear that in effect the Assistant Taxing Master has found on the warrant to tax that these alleged payments to witnesses were false. On that finding I see no reason why the defendant, whose bill it was, should not pay the plaintiffs' costs of the investigation on this point. It is only right and proper she should, and I accordingly make the summons absolute with costs except so far as the costs of bringing counsel on the taxation are concerned. Counsel certified.
8. With reference to the second warrant to review I am of opinion it was not competent not only because no second warrant to review is contemplated by Rules 529 and 530 but also by the application to these proceedings of the principles of res judicata. It was open to the defendant to have applied to the Assistant Taxing Master to have the first warrant to review amended by inserting an objection to the order for costs passed regarding the proceedings on the warrant to tax. She did not do so but withdrew the first warrant to review. She cannot be allowed to harass the plaintiffs by taking out a second review. The Assistant Taxing Master, it appears from his reasons, was also of opinion that the second review was not competent. The order made on that second review including the order as to costs of it will, therefore, be set aside.
9. The costs of the first warrant to review have not been dealt with. There is no doubt that the defendant having taken out that warrant and abandoned it must pay the coats of it. I make an order accordingly. Costs of this review to be borne by defendant. Counsel not certified.
10. It is not the usual practice to allow costs of counsel attending before the Taxing Master and a careful check should be kept on the further accumulation of costs in taxation, I see no reason here to depart from the usual practice and the costs of counsel will, therefore, be disallowed on all appearances in this matter before the Taxing Master.
11. This litigation has resulted in a species of vendetta between the parties which accounts for the bitterness with which they have contested every step in the taxation proceedings and before me.