reasonable client. The strong line of distinction which in the Queen's Bench Division has grown up between the two systems, ought never to have done so if care had been taken to keep the scale of costs and the practice in harmony not only with the proper principles of taxation, but with business methods.

The next question, therefore, which arises is-How can the statutory scale of costs be altered and kept up to a proper standard of perfection?

It needs to be revised by a small and practical body of officials and lawyers. To suppose that this is work which can properly be done by the Rule Committee of Judges is absurd. Such an alteration, so to speak, is rather a matter of business than of law: it is experience of the minutia of litigation which is needed. To carry out theories of perfection often causes practical injustice. An illustration of this may well be given from the existing Admiralty practice. As every one knows, a ship can be arrested in an action in rem, and, if bail is not given, can be kept under arrest at considerable cost and, of course, at much inconvenience and loss to the owners. It is, therefore, a constant-it may almost be said invariable-practice for the owners of a ship to give bail. The solicitors, as soon as the writ is issued, or before, give an undertaking that bail shall be given. But the sureties to the bail bond are paid a small percentage on the amount of the bail which is given. This is a perfectly reasonable matter of business. If the defendants are successful, they naturally desire to recover from the unsuccessful plaintiff the expenses thus incurred. And it must be remembered that if bail had not been given, they would have been entitled to recover from the unsuccessful litigant the marshal's costs and charges—such as the wages of a ship-keeper, etc. But it was decided by the late Lord Hannen and Sir Charles Butt that commission on bail is not an item of costs which can be recovered on a party and party taxation. "We should

not," said Lord-then Sir James-Hannen, “be justified in creating a new head of costs." The result has been, therefore, that successful defendants have had to pay this commission out of their own pockets, though by the general consensus of opinion among shipowners and solicitors this is an item which should fairly and reasonably be paid by the losing party. The idea of the Court was to keep down the cost of litigation-the result of the decision has been to retain a practical injustice.†

There exists a precedent, and an admirable one, in regard to such revision, namely, the Departmental Committee, which was appointed to consider alterations in the form of the Judicial Statistics.

The report of that committee was promptly acted on by the Home Secretary, resulting in the important and useful changes in the publication of those statistics which are now so well known. That committee consisted of three or four officials, and its investigations were prompt and businesslike, and they have resulted in practical improvements. There appears to be no reason whatever why a similar committee appointed to consider the scale of costs and the rules in regard to costs should not effect an equally satisfactory result. For the rules require consideration as much as the so-called scale-some are too detailed, some not sufficiently full of statements of principles of taxation, and the whole a singularly unsystematic collection. They should form a clear and short code of the principles and practice governing the taxation of costs, grouped under heads. They should make an end once and for all of the judicial decisions on the subject, which are often misleading,

*The Collingrove, L. R. 10 P. D. 158.

In the Scale of Fees which I drew for the Departmental Committee, and which is appended to the new Rules of Court in Prize Proceedings, the rule on this subject is, "The commission or fee paid to persons becoming sureties to bail bonds or otherwise giving security may be allowed, provided that the amount thereof shall not in the aggregate exceed one pound per centum."

because they are so much decisions on particular facts, and not seldom of no sort of guidance when they have to be applied to other cases.

What are needed are, in such rules, general directions to guide the discretion of taxing officers. No doubt Order LXV. r. 27, sub-rule 29, contains a general direction in the midst of a number of small directions. This rule is as follows: "As to costs to be paid or borne by another party, no costs are to be allowed which do not appear to the taxing officer to have been necessary or proper for the attainment of justice or defending the rights of the party, or which appear to the taxing officer to have been incurred through overcaution, negligence, or mistake, or merely at the desire of the party." This rule is suggestive of disallowing rather than of allowing items, and a rule guiding the taxing officer towards liberality rather than towards parsimony is required. Yet this rule, if liberally interpreted, with a fair list of fixed items and a code of rules in regard to allowances freed from some of the narrowing judicial decisions, would be by no means unworkable. But it is easy to see that, as it stands, it may be made a legal bar to many charges.

There is yet another thing to be said in regard to a committee for the revision of the rules and scales of costs. There should be a standing committee to which suggestions for alterations or improvements should be referred, so that the rules and scales should be kept up to date, judicial decisions should be considered by it, so that a decision in one division should be made-if it be sound-applicable to all divisions. That is to say, uniformity of practice should be kept in view, so far as it is consistent with the very different subjects of litigation in the different divisions.

But whilst uniformity in such matters as are common to all divisions of the High Court is desirable, it by no means follows that each division should have the same scale of fees. In each division there are some matters of practice special to

it. To mix up items of practice peculiar to one division in a common scale is unscientific and unbusinesslike. It causes confusion and does not produce amalgamation. The practice as regards bail and preliminary acts is peculiar to the Admiralty Division, that as to the procedure under Order XIV. is peculiar to the Queen's Bench Division. There are in the Chancery Division any number of portions of practice which never occur in other divisions. A separate scale for each division would therefore tend to the convenience of practitioners. Such a separate scale-so far as Admiralty business is concerned-may be seen in the scale appended to the new Rules of the Prize Court. For the practice of the Prize Court is almost identical with that of the Admiralty Court. With slight modifications this scale, to which allusion has already been made, would, there can be very little doubt, form a satisfactory scale for Admiralty business in the High Court.

Separate rules there need not be, though any rules as to costs which are peculiar to any particular Division should be grouped under separate heads. The object, however, to be aimed at in regard to rules and scales of costs is to place in rules, general directions or statements of principle only, and to include detailed directions in a scale. It is not desirable that small details should be dealt with in rules appended to the Judicature Acts, and if they cannot be placed in a scale they might be formulated in regulations to be settled by the taxing officers, and approved by the President of the division to which they refer. All these matters, however, are such as require consideration by a committee specially appointed to consider and make recommendations in regard to the present practice as to taxation of costs. That is the first step towards any improvement, and the General Council of the Bar would have done greater service to the public if they had insisted upon the necessity for such a committee rather than contenting themselves with the issue

of a memorandum, which, after all, does no more than state what every lawyer, who is acquainted with the cost of litigation, knows perfectly well.

But, as has already been said, it must not be expected that any system of taxation can give general satisfaction. This, more especially as regards trials of actions with viva voce evidence, is so for another and special reason which may not always be apparent in the discussion of this question. There are the charges made by witnesses. Some witnesses are under the impression that they may fairly make money out of the giving of evidence; others have a high idea of the value of their time. That for many years the allowances on taxation to witnesses have in some instances been too low cannot be doubted. At the present time the discretion of the taxing officer is, however, unfettered, and any reasonable amount may be allowed. But the difficulty arises when a litigant has been charged an unreasonable sum and has unwillingly paid it. He is in a dilemma; he must either pay an unreasonable sum or lose important evidence. Of course, every one may be compelled to appear by means of a subpoena; but a witness who comes unwillingly may ruin a case. Yet, on the other hand, it is obviously unjust that the unsuccessful litigant should have to pay a sum which is obviously too large. It may, perhaps, be doubted whether witnesses who demand too much will be prevented from doing so by any means. But that witnesses should have their attention drawn to the legal aspect of their position cannot be doubted. It might be that every subpoena should contain a notice that a witness is only entitled to a reasonable sum for expenses and loss of time. Solicitors again should be careful only to give with a subpoena the amount required for travelling and subsistence. To give a kind of retaining fee, as is now sometimes done, leads witnesses to be under the impression that the money paid with the subpoena is not a sum paid either wholly for the expenses of attending a trial