It is provided in Ontario by the Mortgages Act, R.S.O. 1914, c. 112, s. 30, that where, pursuant to any condition Or proviso contained in a mortgage, there has been made or given a demand or notice either requiring payment of the money secured by such mortgage or declaring an intention to proceed under and exercise the power of sale therein contained, if there is a dispute as to the costs payable by the person by whom or on whose behalf payment is made or tendered, the costs shall be taxed by the clerk of the county or district court or by the local master of the county or district in which the mortgaged property or any part thereof is situate (c).

It is also provided by the same section of the statute that a mortgagee's costs of and incidental to the exercise of a power of sale may, without an order, be taxed at the instance of any person interested by one of the taxing officers of the Supreme Court at Toronto or by a local master having jurisdiction in the county or district in which the mortgaged property or any part of it is situate. A local registrar who is not a local master has no jurisdiction (d). No appeal lies from the taxation (e).

If a mortgagee is a solicitor he will not be allowed profit costs, but only costs out of pocket, in respect of any legal proceedings taken by him personally to recover the mortgage debt

(b) Hatt v. Park, 1858, 6 Gr. 553; Lewin v. Jones, 1884, 51 L.T. 59.

(c) See chapter 31, Sale under Power of Sale, Sec. 340, where the provisions of ss. 29 and 30 of the statute are quoted.

(d) Re Drinkwater and Kerr, 1907, 15 O.L.R. 76.

(e) Re Vanluven and Walker, 1900, 19 O.P.R. 216.

(f), but a solicitor acting for himself and a co-mortgagee who is not a solicitor is entitled to profit costs (g). Where the legal proceedings are taken by the firm of which the solicitor mortgagee is a member, his partnerswill be entitled to the same share of such profit costs as they are entitled to in the general profits of the partnership business (h).

It has been held that a covenant in the mortgage deed to pay profit costs to a solicitor mortgagee would be void as being a contract for a collateral advantage beyond the principal and interest, and the costs to which a solicitor mortgagee is ordinarily entitled (i). In England under the Mortgagees' Legal Costs Act, 1895 a solicitor who is a mortgagee either alone or jointly with any other person is now entitled to profit costs.

Provision is made by the Solicitors Act, R.S.O. 1914, c. 159, s. 40, as follows:

40.- (1) Where any person, not being chargeable as the principal party, is liable to pay or has paid any bill either to the solicitor, his assignee or personal representative, or to the principal party entitled thereto, the person so liable to pay or paying, his assignee or personal representative, may apply to the court or a judge for an order referring to taxation as the party chargeable therewith might himself have done, and the same proceedings shall be had thereupon as if the application had been made by the party so chargeable.

A mortgagor is a third party within the act so as to entitle him to have the mortgagee's costs taxed (j). Where a first mortgagee sells under the power of sale contained in the mortgage, a subsequent mortgagee is entitled to an order to tax the first mortgagee's costs of exercising the power, such costs to be taxed as between solicitor and client (k).

(f) In re Wallis, Ex parte Lickorish, 1890, 25 Q.B.D. 176; Eyre v. Wynn-Mackenzie, [1894] 1 Ch. 218; Stone v. Lickorish, [1891] 2 Ch. 363.

(g) Sclater v. Cottam, 1857, 3 Jur. N.S. 630; In re Doody, Hib-bert v. Lloyd, [1893] 1 Ch. 129.

(h) In re Doody, Fisher v. Doody, [1893] 1 Ch. 129; Eyre v. "Wynn-Mackenzie, supra.

(i) Eyre v. Wynn-Mackenzie, supra. Under the more recent authorities, however, a stipulation for a collateral advantage is valid if it is not oppressive: see chapter 3, Legal Mortgage in Equity, Sec. 25.

(j) Ex parte Glass, Re Macdonald, 1863, 3 O.P.R. 138.

It has been held that if the mortgagee has paid his solicitor's costs and so precluded himself from taxing the bill, the mortgagor who stands simply in the place of the mortgagee has no right to tax the costs, and that if the mortgagee has paid the solicitor more than the proper costs the mortgagor's only remedy is against the mortgagee for an account (l). It is, however, provided by s. 42 of the Solicitors Act as follows:

42. The payment of any bill shall not preclude the court or judge to whom the application is made from referring it for taxation, upon such terms and subject to such directions as to the court or judge may seem just, if the application is made within twelve months after payment, and if the special circumstances (m) of the case, in the opinion of the court or judge, appear to require the taxation.

Upon a reference in an action for foreclosure or sale in an action for redemption, one of the duties of the master is to tax the costs of the various parties (n).

(k) Re Crerar & Muir, 1879, 8 O.P.R. 56; Re O'Donohoe, 1868, 4 O.P.R. 266; In re Jessop, 1863, 32 Beav. 406.

(l) Re McDonald, McDonald & Marsh, 1879, 8 O.P.R. 88; Re Cronyn, Kew & Betts, 1880, 8 O.P.R. 372; Re Massey, 1865, 34 Beav. 463.

(m) See In re Hirst & Capes, [1908] 1 K.B. 982, S.C. sua nom. Hirst v. Fox, [1908] A. C. 416.

(n) See chapter 24, Action for Foreclosure or Sale, Sec. Sec. 239, 241,. and chapter 25, Action for Redemption, Sec. 259.