nice in cutting down the plaintiff's proof to the exact amount at which, under bare poles, he may conduct his vessel into port." (Per Tindal, C.J., in Andrews v. Thornton, 8 Bing. at p. 434.) Payment into Court. Money cannot now be paid into Court in any action of libel or slander without admitting the plaintiff's cause of action; no defence denying liability can be pleaded at the same time. (Order XXII. r. 1.) As to payment into Court under Lord Campbell's Act see post p. 595. If the plaintiff accepts the sum paid into Court in satisfaction of his claim, he must give the defendant notice to that effect, and may then proceed to tax his costs, unless the Court or a judge otherwise orders, and in case of non-payment he may sign judgment for his costs. (Order XXII. r. 7.) This is the rule, even where the defendant pays sixpence into Court, and the plaintiff accepts that sum in satisfaction of his claim. (McSheffrey v. Lanagan, 20 L. R. Ir. 528.) But a judge at chambers will deprive the plaintiff of his costs if the whole action was useless or malicious. (Broadhurst v. Willey, W. N. 1876, p. 21; Nichols v. Erens, 22 Ch. D. 611; 52 L. J. Ch. 383; 31 W. R. 412; 48 L. T. 66.) If the plaintiff does not accept the sum paid into Court, but continues his action for damages ultra, he will recover the whole of his costs of the action should the jury find a verdict for an amount larger than the sum paid into Court. If, on the other hand, the verdict be for an amount not greater than the sum in Court, the defendant will strictly be entitled to the whole costs of the action (Langridge v. Campbell, 2 Ex. D. 281; 46 L. J. Ex. 277; 25 W. R. 351; 36 L. T. 64; Goutard v. Carr, 13 Q. B. D. 598, n.; 53 L. J. Q. B. 55, 467, n.; 32 W. R. 242). But the judge in such a case generally thinks fit to make an order that the plaintiff shall have his costs of the action up to the time when the money was paid into Court, and the defendant shall have only his costs incurred after that time. (Buckton v. Higgs, 4 Ex. D. 174; 27 W. R. 803; 40 L. T. 755; The William Symington, 10 P. D. 1; 51 L. T. 461; Best v. Osborne, Garrett & Co., (1896) 12 Times L. R. 419; Wagstaffe v. Bentley, (1902) 1 K. B. 124; 71 L. J. K. B. 55; 85 L. T. 744; Smith v. Northleach R. D. C., (1902) 1 Ch. 197; 71 L. J. Ch. 8; 50 W. R. 104; 85 L. T. 449.) Counterclaim. It is seldom that there is a counterclaim in an action of libel or slander; but whenever there is, its presence complicates the question of costs. In an action of libel or slander there can be no set-off, as the damages claimed are unliquidated; in other words, the counterclaim is not a defence to the plaintiff's action, but practically a cross-action brought by the defendant against the plaintiff. Section 116 of the County Courts Act, 1888, does not apply to actions of libel or slander, or to counterclaims of any kind. (Blake v. Appleyard, 3 Ex. D. 195; 47 L. J. Ex. 407; 26 W. R. 592; Amon v. Bobbett, 22 Q. B. D. 543; 58 L. J. Q. B. 219; 37 W. R. 329; 60 L. T. 912.) Hence, if the plaintiff's claim is either for libel or slander, and the defendant sets up any counterclaim, and both recover, and no special order is made as to costs, the taxation should proceed thus: The costs of the plaintiff's claim should first be taxed as if it were a separate action with no counterclaim. Then the costs incurred by the counterclaim must be taxed, as though they were part of the costs of a separate action. Any costs which have been incurred partly in support of or in opposition to the defence, and partly in support of or in opposition to the counterclaim, the taxing-master must apportion as best he can, and fix the amount applicable to the defence and the amount applicable to the counterclaim. Then whichever be the smaller amount-the costs of the claim or the costs of the counterclaim-must be deducted from the larger; and the successful party will have judgment for the balance. (Atlas Metal Co. v. Miller, (1898) 2 Q. B. 500; 67 L. J. Q. B. 815; 46 W. R. 657; 79 L. T. 5; explaining Baines v. Bromley, 6 Q. B. D. 691; 50 L. J. Q. B. 465; 29 W. R. 706; 44 L. T. 915.) If the plaintiff recover any sum at all, even a farthing, and the defendant nothing on his counterclaim, then the plaintiff, in the absence of any special order to the contrary, is entitled to the whole costs of the action. (Potter v. Chambers, 4 C. P. D. 457; 48 L. J. C. P. 274; 27 W. R. 414.) If neither plaintiff nor defendant recover anything on either claim or counterclaim, the plaintiff pays the general costs of the action, including those common to both claim and counterclaim, for he commenced the litigation; the defendant pays only such costs as the plaintiff can prove to have been occasioned by the counterclaim. (Saner v. Bilton, 11 Ch. D. 416; 48 L. J. Ch. 545; 27 W. R. 472; 40 L. T. 134; Mason v. Brentini, 15 Ch. D. 287; 29 W. R. 126; 42 L. T. 726; 43 L. T. 557.) If, however the action be not of libel or slander, but be such that it could have been brought in the County Court, then the plaintiff's right to costs will be subject to s. 116 of the County Courts Act, 1888; while the defendant will be entitled to recover all the costs of his counterclaim, if he recover only a farthing thereunder, unless a special order be made to the contrary. (Staples v. Young, 2 Ex. D. 324; 25 W. R. 304; Chatfield v. Sedgwick, 4 C. P. D. 459; 27 W. R. 790; 41 L. T. 438; Rutherford v. Wilkie, 41 L. T. 435; Ahrbecker & Son v. Frost, 17 Q. B. D. 606; 55 L. T. 264.) Costs of a Remitted Action. If an action of libel or slander be commenced in the High Court, and subsequently remitted to a County Court, under s. 66 of the County Courts Act, 1888, "the action and all proceedings therein shall be tried and taken in such Court as if the action had originally been commenced therein." It follows that the High Court has no jurisdiction to make any order as to the costs of such an action (Moody v. Steward, L. R. 6 Ex. 35; 40 L. J. Ex. 25; 19 W. R. 161; 23 L. T. 465; Harris & Sons v. Judge, (1892) 2 Q. B. 565; 61 L. J. Q. B. 577; 41 W. R. 9; 67 L. T. 19); and that the power of the County Court judge over costs is regulated by s. 113 of the County Courts Act, 1888, and not by the Rules of the Supreme Court. That is to say, the judge has absolute discretion over the costs of the action, whether it be tried by a jury or not. Such discretion must, of course, be exercised judicially; but is not restricted by any provision as to "good cause." In the absence of any special direction, the costs will follow the event; the costs of the proceedings in the High Court will be allowed according to the scale in use in the High Court; the costs incurred since the order to remit according to the County Court scale. Costs of Former Trial. The costs of the first trial abide the event of the second, unless any special order be made when the new trial is granted, or at the second trial. (Creen v. Wright, 2 C. P. D. 354; 46 L. J. C. P. 427; 25 W. R. 502; 36 L. T. 355; Field v. Great Northern Ry. Co., 3 Ex. D. 261; 26 W. R. 817; 39 L. T. 80; Harris v. Petherick, 4 Q. B. D. 611; 48 L. J. Q. B. 521; 28 W. R. 11; 41 L. T. 146; Jones v. Richards, (1899) 15 Times L. R. 398; Dunn v. S. E. & C. Ry. Co., (1903) 1 K. B. 358; 72 L. J. K. B. 127; 51 W. R. 427; 88 L. T. 60). And by "the event " of the second trial is meant the result of that trial as to costs. (Brotherton v. Metropolitan District Ry. Joint Committee, (1894) 1 Q. B. 666; 42 W. R. 273; 70 L. T. 218; 9 R. 154; and see post, p. 658.) If on the new trial the defendants ask leave to amend their Defence and pay money into Court under Order XXII. r. 1., this is an "event" in favour of the plaintiffs. (Farquhar, North & Co. v. Edward Lloyd, Ltd., (1901) 17 Times L. R. 568.) Inquiry as to Damages. It has been decided by the Court of Appeal that the assessment of damages by a jury before an under-sheriff, upon a writ of inquiry issuing out of the High Court, is the trial of a cause, matter, or issue in the High Court. (William Radam's Microbe Killer Co., Ld. v. Leather, (1892) 1 Q. B. 85; 61 L. J. Q. B. 38.) Under the County Courts Act, 1867 (30 & 31 Vict. c. 142), it was decided that an under-sheriff executing such a writ was a "judge," and had power to certify for costs as required by that Act (Craven v. Smith, L. R. 4 Ex. 146; 38 L. J. Ex. 90; 17 W. R. 710; 20 L. T. 400); although, of course, he is not "a judge of the High Court" within s. 116 of the County Courts Act, 1888. (Cox v. Hill, 67 L. T. 26.) But as no action of libel or slander can be commenced in a County Court, s. 116 does not apply. Hence, it would seem to follow that the under-sheriff presiding over such an assessment of damages by a jury is "the judge by whom such action, cause, matter, or issue is tried" within the meaning of Order LXV. r. 1, and has, therefore, power for good cause to deprive the plaintiff of his costs. If so, the decision of Field, J., at Chambers in Gath v. Howarth, W. N. 1884, p. 99, is no longer law. Husband and Wife. If a married woman having general separate estate fail in an action of libel or slander, she may be condemned in costs, although her husband was joined with her as a co-plaintiff or a co-defendant. (Newton and wife v. Boodle and others, 4 C. B. 359; 18 L. J. C. P. 73; Morris v. Freeman and wife, 3 P. D. 65; 47 L. J. P. D. & A. 79; 27 W. R. 62; 39 L. T. 125; and see the remarks of Jessel, M.R., in Besant v. Wood, 12 Ch. D. 630; 40 L. T. 453; and ss. 1 and 13 of the Married Women's Property Act, 1882, post, pp. 530, 536.) Whenever a married woman institutes proceedings and fails, she may be ordered to pay the costs out of separate property which is subject to a restraint on anticipation. (Sect. 2 of the Married Women's Property Act, 1893.) No such order can be made in any action in which she is a defendant, unless she counterclaims. (Hood-Barrs v. Cathcart (1), (1894) 3 Ch. 376; 63 L. J. Ch. 793; 71 L. T. 11; Hood-Barrs v. Cathcart (2), (1895) 1 Q. B. 878; 64 L. J. Q. B. 520; 43 W. R. 560; 72 L. T. 427; Hood-Barrs v. Heriot, (1897) A. C. 177; 66 L. J. Q. B. 356; 45 W. R. 507; 76 L. T. 299.) Public Bodies. As a rule if the officers of any corporation, local board, company, or other public body be libelled or slandered, and take either civil or criminal proceedings to clear themselves, the costs must not be paid out of the corporate funds, which were contributed for other purposes. But if the action be brought against the defendant in respect of anything done as agent of a corporation or a public body and within the scope of his authority, the corporation may apply its funds to indemnify the agent in defending the action. (Breay v. Royal British Nurses' Association, (1897) 2 Ch. 272; 66 L. J. Ch. 587; 46 W. R. 86; 76 L. T. 735.) And if it be the company itself that is libelled or slandered, the directors may, of course, employ the company's funds in its own defence. Illustrations. The house surgeon of the Marylebone workhouse was dismissed by the guardians in consequence of differences which had arisen between him and the honorary physician of the parish infirmary. The house surgeon thereupon brought actions of libel and slander against the honorary physician, and also against the assistant surgeon of the workhouse. He failed in both, became bankrupt, and disappeared. The guardians thereupon paid the costs incurred by their officers out of the poor's rates; and the poor law auditors allowed the payment. But Knight-Bruce, V.-C., held such payment a breach of trust, and ordered those guardians who had authorised it to refund the amount out of their own pockets. Attorney-General v. Compton, 1 Younge & Collyer, Eq. 417. A Turkish railway company was managed by English directors. Ellissen wrote a letter to Lord Stanley (then Secretary for Foreign Affairs), charging the directors with mismanaging the affairs of the company and misappropriating its funds. At a general meeting of the shareholders a resolution was passed requesting the directors "to adopt the strongest possible measures to put an end to such mischievous action." The directors accordingly prosecuted Ellissen for libel. Wickens, V.-C., held that the costs of such prosecution could not be paid out of the assets of the company. Pickering v. Stephenson, L. R. 14 Eq. 322; 41 L. J. Ch. 493; 20 W. R. 654; 26 L. T. 608. And the directors would now, in such a case, be ordered to repay to the Company any costs thus improperly paid out of its funds. Cullerne v. London, &c., Building Society, 25 Q. B. D. 485, 490; 59 In re Sharpe, (1892) 1 Ch. 154, 165; 61 L. J. Ch. 193; 40 W. R. 241; A former employé of the Army and Navy Stores took to walking up and down |