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special ground upon which the court will direct | by a high tide overflowing the wall. The claim taxation of the costs upon the higher scale under for an injunction was only added by amendment the provisions of Ord. LXV. r. 9. Hudson v. of the statement of claim. A perpetual injuncOsgerby, 50 L. T. 323; 32 W. R. 566. ticn was granted and an inquiry directed as to An injunction was granted restraining a dis- damages before a special referee. The referee trict board of works from erecting posts by the reported that the plaintiff was entitled to 1,9417. side of public footpaths so as to interfere with damages; this amount was reduced on the the due enjoyment of the plaintiff's market, but ground that it had been assessed upon a wrong costs on the higher scale were refused. Horner principle. The taxing-master gave the plaintiff v. Whitechapel Board of Works, 54 L. J., Ch. costs on the higher scale:-Held, that it was the duty of the taxing-master to consider whether, having regard to all the circumstances, an injunction was the principal relief sought, but that the court could, though it would not except in a clear case, interfere with his finding; that the action was really a common law action, though brought in the Chancery Division; that, in order to see which was the principal relief sought, the comparison must be made between the injunction and the damages claimed; that if no injunction had been asked, the defendants would, as a matter of business, have raised their wall to the proper height; and, therefore, that the plaintiff had not sustained the onus of proving that an injunction titled to costs on the lower scale. was the principal relief sought, and was only enRust v. Victoria Graving Dock, 60 L. T. 645—C. A.

"Injury to Property "-Trespass.]-In Ord. VI. r. 2, of the Rules of the Supreme Court (Costs) [repealed], the “injury to property must be a substantial physical injury, and does not include a trespass upon land without injury to the soil, though of a permanent character and committed in the assertion of title. Chapman v. Midland Ry. (5 Q. B. D. 167, 431) discussed. Goodhand v. Ayscough, 10 Q. B. D. 71. Affirming 52 L. J., Q. B. 97; 47 L. T. 701; 31 W. R.114. The plaintiff brought an action for damages for an alleged trespass under a claim of right, and prayed an injunction to restrain the defendant from a repetition of it. The issue was one of considerable importance as between the parties, and involved a lengthened and expensive inquiry into the title of property which had been in the possession of the plaintiff's family for more than three centuries. Upon the trial (without a jury) the plaintiff obtained judgment for nominal damages :-Held, not a case in which the court, in the exercise of its discretion under Ord. VI. r. 3, Rules of the Supreme Court (Costs), would order the costs to be taxed upon the higher scale. Norfolk (Duke) v. Arbuthnot, 50 L. J., Q. B. 384; 6 Q. B. D. 279; 29 W. R. 337.

When the principal Relief Sought.] In an action for trespass to land, the plaintiff claimed and obtained an injunction in addition to damages for the trespass. The nature of the trespass complained of did not involve any assertion of title or any injury of a permanent, irreparable character. The plaintiff claimed costs on the higher scale under Rules of the Supreme Court (Costs), Ord. VI. r. 2 [repealed] :-Held, that this was not such an action for an injunction as to render the higher scale applicable within the rule. Chapman v. Midland Ry., 49 L. J., Q. B. 449; 5 Q. B. D. 431; 42 L. T. 612; 28 W. R. 592—C. A.

Agency Denied.]-The costs of a suit for the purpose of establishing a right to property against an alleged agent, who has denied the agency, and claimed the property as his own, do not come within the lower scale, although the property in question is under the amount or value of 1,0007. L. R. 4 Eq. 352; 16 L. T. 516 ; 15 W. R. 896. Stamford (Earl) v. Dawson, 36 L. J., Ch. 749;

Bill of Exchange.]-In an action on a bill of exchange properly brought in the Chancery Division, costs may be allowed on the higher scale under Ord. VI. rr. 2, 3 [repealed]. Pooley v. Driver, 5 Ch. D. 458.

Estate or Fund less than £1,000.]-A husband purported to devise six freehold cottages to his wife for life, with remainder to his nephew in fee, and bequeathed his personal estate, which amounted to upwards of 1,0007., to his wife absolutely. The cottages were not in fact the property of the husband, but of his wife. After his death his widow sold the cottages to a purchaser in fee. Upon the death of the widow a purchaser of the nephew's supposed reversion The plaintiff, the lessee and owner of a market, under the will brought an action against her brought an action to recover damages for breaches executors, claiming damages in consequence of of covenant against the tenants of certain houses her alleged wrongful sale, or compensation in within the market, and claimed an injunction to consequence of her having elected to take the restrain the defendants from further breaches. cottages against her husband's will, and, if necesThe judge before whom the action was tried, sary, administration of the estates of herself and holding that the injunction was the principal her husband. At the trial of the action it was relief sought, and that the action was brought to declared that the plaintiff was entitled to prove establish a right, made an order, allowing the against the widow's estate (which was already plaintiff costs on the "higher scale." The judge being administered in another action) for the who tries the action has jurisdiction to make such value of the cottages-subsequently assessed at an order under r. 3 of Ord. VI. of the rules as 3601., and for his costs in the action. In taxing to costs [repealed ], and should, in the exercise of the costs the master taxed them on the lower his discretion, regard the intention of the legis-scale under Ord. VI. r. 1 [repealed], on the lature, as expressed in r. 2 of the same order. ground that the value of "the estate or fund Horner v. Oyler, 49 L. J., C. P. 655.

The plaintiffs brought an action in the Chancery | Division claiming an injunction to restrain the defendants from allowing the wall of their dock to remain below a certain height prescribed by act of parliament, and 9,000l. for damages in respect of injury to his houses and land, caused

dealt with" in the action was under 1,0007. :— Held, that the action was nothing more than an action for damages, and not within the causes and matters assigned to the Chancery Division by the Judicature Act, 1873, s. 34, and that consequently the lower scale applied. Rogers v. Jones, 7 Ch. D. 345; 38 L. T. 17.

In an administration action, where the estate | Mordue v. Palmer, 40 L. J., Ch. 8; L. R. 6 Ch. consisted of personalty, and the equity of 22; 23 L. T. 752; 19 W. R. 86. See Hartnell v. redemption in real estate and the gross value, Hill, Forrest, Ex. Rep. 74. including the amount of the mortgage debt, exceeded 1,000l., but the net value of the interest possessed by the testator was less than that sum, the lower scale of costs was held to be applicable. Sanderson, In re, 7 Ch. D. 176; 38 L. T. 379; 26 W. R. 309.

In estimating the value of an estate of a testator for the purpose of ascertaining whether costs are to be paid on the higher or lower scale, the value of the estate at the death of the testator is to be looked at, although the costs of a suit to get in part of the assets may reduce that amount. Steward v. Nurse, 43 L. J., Ch.


In a suit to enforce a charge or a lien for an amount under 1,000l. against the purchasers of real estate for an account of the amount due, and for a receiver and sale, the costs ought to be taxed upon the lower scale. Paddon v. Winch, 44 L. J., Ch. 568; L. R. 20 Eq. 449; 32 L. T. 794; 23 W. R. 787.

In a suit against an attorney, for the purpose of having his bills of costs on the plaintiff taxed, and for an injunction against his proceeding at law in the meantime, defendants moved that the costs might be taxed as between attorney and client; but the court said, that the rules of taxation of costs, as between attorney and client, did not apply where they appear in the court as party and party in a cause, and that these costs, therefore, must be taxed as between party and party. Spelman v. Woodbine, 1 Cox, 49.

In what cases Ordered.]-When an unsuccessful party has been ordered to pay costs, it is not the practice to direct such costs to be taxed as between solicitor and client, except where a fiduciary relation exists between the parties, or where there is something in the nature of scandal, as where gross charges of fraud have been made and not sustained; but the court may direct an unsuccessful party to pay the costs of a trustee A mortgagor received an advance of 9007. as between solicitor and client, whether there is from a building society, and conveyed to the or not any fund out of which they may be paid. society property to secure the payment by him Turner v. Collins, 40 L. J., Ch. 614; L. R. 12 of 9007, and interest in 120 instalments (amount-Eq. 438; 25 L. T. 264. See S. C., 41 L. J., Ch. ing together to 1,2757.), and also of certain fines 558; L. R. 7 Ch. 329; 25 L. T. 779; 20 W. R. and charges in the event of his failing to pay the instalments. A decree for redemption was made, the costs of the suit to be added to the security: -Held, that as the sum originally advanced was less than 1,000l., the costs must be taxed on the lower scale, and that the fines and charges which might be incurred could not for this purpose be considered as added to the sum advanced. Cotterell v. Stratton, 43 L. J., Ch. 573; L. R. 9 Ch. 514; 30 L. T. 589; 22 W. R. 607.

Held, also, that the scale of taxation was not dependent on the amount due when the bill was filed. Ib.

The lower scale of costs directed by the general orders of the court must govern the taxation where a sum exceeding 1,000l. has been reduced below that amount by payments before suit. Judd v. Plumm, 30 L. J., Ch. 94; 9 W. R.


The costs of a suit seeking relief by way of account in respect of alleged fraud and overcharges by a builder fall within the higher scale upon taxation as between party and party; and especially when the account sought to be taken includes sums far exceeding 1,0007., and the amount of overcharge is fixed by the plaintiff at a sum exceeding that limit. Flockton v. Peake, 4 N. R. 456; 12 W. R. 1023.

ii. As between Solicitor and Client. Jurisdiction to Order.]-The Court of Chancery formerly had, and the High Court of Justice now has, in matters of equitable jurisdiction, a general discretionary power to give costs as between solicitor and client. Whether the High Court has the same power in matters of common law jurisdiction, quære. Cockburn v. Edwards (18 Ch. D. 449) questioned. Mordue v. Palmer (L. R. 6 Ch. 22) approved. Andrews v. Barnes, 57 L. J., Ch. 694; 39 Ch. D. 133; 58 L. T. 748; 36 W. R. 705; 53 J. P. 4-C. A.

An arbitrator to whom the matters at issue in a suit, including the costs of the cause, have been referred by the Court of Chancery, has power to award costs as between solicitor and client.


Fraud.]-Costs as between attorney and client against parties to a fraudulent bankruptcy, except those who discovered and gave evidence ; and the attorney deprived of the office of master extraordinary, and committed. Thorp, Ex parte, 1 Ves. J. 394.

A plaintiff, in a bill to enforce against the defendant an alleged agreement for the compromise of claims of the plaintiff against the defendant in respect of accounts, charged the defendant with various frauds in respect of the accounts, such alleged frauds being the ground of the claims included in the compromise. The plaintiff having failed in proving the agreement, and his bill being dismissed with costs, he was ordered to pay the defendant's costs so far as they had been increased by the irrelevant charges of fraud, as between solicitor and client. Forester v. Read, L. R. 6 Ch. 40; 24 L. T. 79.

Scandal.]-On a successful appeal from an order overruling exceptions for scandal, the appellant was allowed his costs of appeal as well as his costs in the court below, as between solicitor and client. Christie v. Christie, 42 L. J., Ch. 544; L. R. 8 Ch. 499; 28 L T. 607; 21 W. R. 493. See Pearse v. Pearse, 29 L. T. 453; 22 W. R. 69.

In cases of scandal the costs are as between solicitor and client. Porter, Ex parte, Robinson, In re, 2 Mont. & Ayr, 220.

Affidavit in bankruptcy ordered to be taken off the file as irrelevant and scandalous, with costs as between attorney and client. Simpson, Ex parte, 15 Ves. 476; 10 R. R. 104.

Trusts.]-An action was brought by the vicar and churchwardens of a parish to recover from the defendants a fund of small amount which had been handed over to them upon trust for a charitable purpose connected with the parish, but, as the plaintiffs alleged, upon a condition which had become incapable of fulfilment. The plaintiffs failed to make out their case. court, in dismissing the action, being of opinion


Trustee Relief Act.]-See TRUST AND TRUS

that it had been brought wholly without justification, ordered the plaintiffs to pay the costs of TEE. the defendants as between solicitor and client; and the Court of Appeal refused to interfere with the judgment. Andrews v. Barnes, supra. And see also TRUST AND TRUSTEE

Mortgage.]-A taxation at the instance of a mortgagor of the bill of the mortgagee's solicitor, must be as between the solicitor and his client, the mortgagee. Wells, In re, 8 Beav. 416; 14 L. J., Ch. 215; 9 Jur. 820. S. P., Harrison, In re, 10 Beav. 57; 16 L. J., Ch. 170; 11 Jur. 197; and see MORTGAGE.

Will-Representation Order.]—On an adjourned summons for the decision of the court as to the construction of a will, three classes of issue were interested under the will, and representation orders had been made in respect of each

class-Held, that costs must be allowed as

between solicitor and client Davies, In re, Jenkins v. Davies, 64 L. T. 824.

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Against Receiver.]-An adverse application was made against a receiver by a party to the cause, which was refused with costs. The applicant being wholly unable to pay the costs:-Held, that the receiver was entitled to be indemnified and have his costs, as between solicitor and client, out of the fund in hand belonging to incumbrancers. Courand v. Hanmer, 9 Beav. 3.

Highway Act.]-Section 109 of the Highway Act (5 & 6 Will. 4, c. 50) provides that where an action is brought against any person for anything done under the authority of the act, and judgment shall be given for the defendant, he shall have costs as between attorney and client :-Held, that this did not apply to an action for an injunction in the Chancery Division. Pullin v. Deffel, 64 L. T. 134.

Proceedings without Authority.-A suit instituted by a solicitor without authority was dismissed on motion, with costs of the suit, and of the motion, as between solicitor and client. Allen v. Bone, 4 Beav. 493.

A bill was filed by a solicitor as next friend, charging that the plaintiff was of unsound mind, against the plaintiff's housekeeper, to restrain her from exercising undue influence over the plaintiff. Proceedings directed by the court to be taken by the next friend in lunacy to ascertain the state of plaintiff's mind having resulted in a dismissal by the lords justices of the next friend's petition in lunacy with costs, the plaintiff applied to have the bill taken off the file, and Malins, V.-C., made an order accordingly, but, being of opinion that the suit had not been instituted by the next friend without reasonable cause, gave no costs. On appeal upon the subject of costs, the lords justices, in reversal pro tanto of the Vice-Chancellor's order, gave costs to the plaintiff as between solicitor and client, and to the defendant as between party and party. Palmer v. Walesby, 37 L. J., Ch. 612; 19 L. T. 1. See Davies v. Davies, 18 L. T. 701. A person who has been made plaintiff without authority is entitled to full indemnity; and a defendant who, by reason of the bill being ordered to be taken off the file, cannot be heard on the merits, is entitled to costs as if the cause had come to a hearing, and the bill been dismissed on the merits. Ib.


In Proceedings by Legatee.]-See EXECUTOR AND ADMINISTRATOR-WILL.

In Charity Cases.]-See CHARITY.

Taxation.]-Costs directed by decree to be taxed as between a solicitor and client, cannot, on petition, be ordered to be taxed on another principle. Massie v. Drake, 4 Beav. 533.

The 159th General Order does not affect or regulate the taxation of costs as between solicitor and client. Brangan v. Gorges, 7 Ir. Eq. R. 225.

What Costs included.]-By a decree, the costs of all parties were ordered to be taxed as between solicitor and client. Upon a rehearing, the decree was affirmed, and the deposit was ordered to be returned, but nothing was said as to costs. By a subsequent order, the costs of all parties were ordered to be taxed, as between solicitor and client, from the last taxation:Held, that this did not include the costs of the rehearing. Agabeg v. Hartwell, 5 Beav. 271.

A solicitor's bill having been partly taxed and paid, an order, obtained as of course, referring the bill generally for taxation, was discharged with costs. The conduct of the solicitor cannot be adduced in support of such an order, and the costs of affidavits upon that subject were ordered to be paid as between solicitor and client. Clutton v. Pardon, Turn. & R. 301. And see Gretton v. Leyburne, Ib., 407.

Where proceedings in an action were stayed by a judge's order on payment by the defendant of the debt and costs, to be taxed as between attorney and client, the costs of obtaining the leave of the Court of Chancery to bring the action, the plaintiff having, on a creditors' bill being there filed, been restrained from bringing an action against persons indebted to the estate without the leave of the court, were not allowed. Lipscombe v. Turner, 1 B. C. Rep. 101; 4 D. & L. 125; 15 L. J., Q. B. 410.

Where the costs of an ejectment have been taxed, the plaintiff cannot in an action for mesne profits recover costs as between attorney and client; and it makes no difference that the costs have been taxed on the application of the defendant. Doe v. Filliter, 2 D. & L. 186; 13 M. & W. 47; 13 L. J., Ex. 275.

iii, County Court Scale. See infra.

iv. Double Costs.

a. In what Cases,

Order LXV. r. 1-Discretion.]-Ord. LX 1, does not apply to costs which are given by a statute as a matter of right. Thus, in an action brought for anything done in pursuance of 8 & 9 Vict. c. 100, a successful defendant is entitled to double costs as a matter of right. Hasker v. Wood, 54 L. J., Q. B. 419; 33 W. R. 697—C. A.

Full and Reasonable Indemnity.]—The provisions of the Judicature Act and Order LXV. r. 1, do not apply to costs which are

specially given by statute to a particular individual as a matter of right, and therefore in an action brought to recover penalties for infringement of dramatic copyright under 3 & 4 Will. 4, c. 15, s. 2. a successful plaintiff is entitled, as a matter of right, to the full and reasonable indemnity as to costs, substituted by 5 & 6 Vict. c. 97, s. 2, for the double costs given by 3 & 4 Will. 4, c. 15, s. 2. Hasker v. Wood (54 L. J., Q. B. 419) followed. Reere v. Gibson, 60 L. J., Q. B. 451; [1891] 1 Q. B. 652; 39 W. R. 420— C. A.

Before 5 & 6 Vict. c. 97.]—A magistrate who obtained a verdict in an action against him for an act done in his judicial capacity, there being nothing upon the face of the record to show that he was sued as a magistrate, must have procured the certificate of the judge who tried the cause, as a condition precedent, to have enabled him to obtain double costs under 7 Jac. 1, c. 5. Penny v. Slade, 5 Bing. (N.C.) 469; 7 Scott, 484; 7 D. P. C. 440: Arn. 75; 8 L. J., C. P. 221.

A justice of the peace was not entitled to have a suggestion entered on the roll, that the action was brought against him for an act done by him as a justice of the peace, in order to obtain double costs. Fosbrook v. Hall, 1 M. & W. 205; 4 D. P. C. 701; Gale, 440; 1 Tyr. & G. 464 ; 5 L. J., Ex. 152.

A suggestion was only necessary when there would otherwise be an inconsistency on the record, and was not necessary to be entered to give a party double costs. Maberly v. Titterton, 7 M. & W. 540; 9 D. P. C. 234; 10 L. J., Ex. 172; 5 Jur. 250.

A court of requests act enacted, that, in any action for any thing done in pursuance of the act, if upon a verdict or demurrer judgment should be given against the plaintiff, the defendant should recover treble costs :-Held, that the defendant, who had obtained a verdict without calling witnesses, the plaintiff having failed to establish his case, was entitled to treble costs, without having entered any suggestion on the roll, or given the act of parliament in evidence at the trial. Forman v. Dawes, 1 D. & L. 299; 11 M. & W. 730; 12 L. J., Ex. 437.

The court would not, on the last day of term, grant a rule nisi for the plaintiff to bring in the record, in order to enter a suggestion to entitle the defendant to double costs. Anon., 4 Man. & G. 906.

b. How Computed.

The double costs given to magistrates by 21 Jac. 1, c. 12, s. 5, were those costs only which were recoverable in the ordinary course of law, doubled. Thomas v. Saunders, 3 N. & M. 572; 1 A. & E. 552.

I. EFFECT OF COUNTY COURTS ACT. Section 116, 51 & 52 Vict. c. 43.

1. IN WHAT CASES APPLICABLE. Claim on Contract, and Counterclaim.]-In an action of contract the defendant counterclaimed. By the award of a special referee it was found that the plaintiffs were entitled on their claim to 137. 12s. 6d., and that the defendant was entitled on the counterclaim to 631. 88. 6d. :-Held, that by reason of the provisions of s. 5 of the County Courts Act, 1867, the plaintiffs were not entitled to the costs of the issues found for them on the claim. Lund v. Campbell (14 Q. B. D. 821) distinguished. Ahrbecker v. Frost, 55 L. J., Q. B. 477; 17 Q. B. D. 606; 55 L. T. 264; 34 W. R. 789. In an action tried by a jury, in which the plaintiff proves a claim, but a counterclaim of less amount is proved by the defendant, the plaintiff recovers judgment for the balance only, and if no order as to costs is made, the plaintiff's right to costs under the County Courts Act, 1867, and Ord. LV. of the Judicature Acts, must be decided with reference to that balance and not to the amount of the claim proved. Staples v. Young, 2 Ex. D. 324; 25 W. R. 304. S. P., Ryan v. Fraser, 16 L. R. Ir. 253—C. A.

The plaintiff claimed on a balance of account a sum of money exceeding 501. The defendant pleaded a set-off, and also made a counterclaim for goods supplied to the amount of about 241. The action was referred to a master, the costs of the action to abide the event. The master certified that there was due from the defendant to the plaintiff on the claim 16., and from the plaintiff to the defendant on the counterclaim 231., and that the balance due from the plaintiff to the defendant was 71. :-Held, that the defendant was entitled to his costs. Chatfield v. Sedgwick, 4 C. P. D. 459; 27 W. R. 790-C. A.

An action was brought claiming, first, 107. for rent; secondly, 1007. as damages for breach of covenant in a lease of premises; and, thirdly, 301. for conversion of the plaintiff's goods. The defendant pleaded, admitting that the rent was due, but denying the breach of covenant and conversion, and setting up a counterclaim for 1007. damages for breach of covenant by the plaintiff, and 157. for money due for the use and

The true mode of estimating the amount of double costs, is, first, to allow the defendant the single costs, including the expenses of witnesses, counsel's fees, &c., and then to allow him one-occupation of other premises. The action was half of the amount of the single costs, without making any deduction on account of counsel's or court fees. Stanniland v. Ludlam, 7 D. & R. 484 4 B. & C. 889.

Where treble costs are given by an act of parliament to parties sued for anything done in pursuance of the act, in the event of a verdict passing in favour of the defendants, if there are some issues found for the plaintiff and others for the defendants, the proper mode of taxing the costs is first to calculate those of the defendants and treble them, and from the amount subtract the single costs due to the plaintiff on the issues on which he has succeeded. Wilson v. Dunn River Co., 7 D. P. C. 369; 5 M. & W. 89; 8 L. J., Ex. 161; 3 Jur. 343.

referred to an arbitrator by an order made by consent upon the terms that "the costs of the action should abide the event of the award, and that the costs of the reference and award should be in the discretion of the arbitrator." The arbitrator found that the plaintiff was entitled to 101. for rent; that the defendant had broken his covenant in the lease, and had been guilty of the conversion charged, and he awarded that the plaintiff was entitled to recover in respect of such breach of covenant and conversion the sum of 251., making together 351. awarded to the plaintiff; that the plaintiff had broken his covenant, and that the defendant was entitled to recover in respect of that breach 201.; and upon the whole matter he found that the plaintiff

Davidson v. Gray,

was entitled to recover in the action 157. and costs of his counterclaim.
no more:-Held, that the provision in the order 5 Ex. D. 189, n.; 42 L. T. 834—C. A.
of reference as to costs did not alter the rights of|
the parties, and that upon the true construction
of s. 67 of the Judicature Act, 1873, the plaintiff
was entitled to the costs on the claim, and the
defendant to his costs on the counterclaim.
Staples v. Young (2 Ex. D. 324) questioned.
Chatfield v. Sedgwick (4 C. P. D. 459) discussed.
Stooke v. Taylor, 49 L. J., Q. B. 857; 5 Q. B. D.
569; 43 L. T. 200; 29 W. R. 49; 44 J. P. 748.

Reference back to find Specific Issues.]-The plaintiff, who had built two houses for the defendant at a contract price of 1,1357., sued for 1697. 16s., the balance of the price, and for other small items. The defendant raised various defences, and also counterclaimed 1,2007. for penalties for delay and for damages arising from bad work. The pleadings went as far as surreThe plaintiff claimed a balance of 1147. 88., joinder, after which the cause, with all matters and the defendant established a counterclaim to in difference, was referred to an architect as the extent of 1097. 168.; whereupon the judge arbitrator, upon the terms, inter alia, that the directed the jury (as the result of their answers costs of action, reference, and award should to certain questions submitted to them) to find a follow the event, unless the arbitrator should verdict for the plaintiff for the balance, 47. 12s., otherwise order. The arbitrator by an award, and no order was made as to costs. The court silent as to costs, awarded 31. 2s. 6d. to the refused to alter the associate's certificate of the defendant in respect of the action and matters findings of the jury for the purpose of assisting in difference:-Held, that the word "event the defendant to obtain costs upon his counter- ought to be construed distributively, and the claim. Staples v. Young (supra) and Blake v. award remitted to the arbitrator to find specific Appleyard (supra) considered. Potter v. Cham-issues. Ellis v. Desilva, 50 L. J., Q. B. 328; bers, 48 L. J., C. P. 274; 4 C. P. D. 69; 39 L. T. 6 Q. B. D. 521; 44 L. T. 209; 29 W. R. 493— 350 27 W. R. 414. C. A.

Where an action of contract is commenced in the High Court of Justice for a sum exceeding 501., and the plaintiff establishes his claim to the amount, but in consequence of a counterclaim being decided in favour of the defendant the plaintiff recovers judgment for a sumn not exceeding 201., he is not deprived of his costs by virtue of the County Courts Act, 1867, s. 5, extended to actions in the high court by the Judicature Act, 1873, s. 67, for the relief sought by him could not, within the meaning of the latter section, have been given by a county court. Potter v. Chambers, 48 L. J., C. P. 274; 4 C. P. D. 457; 27 W. R. 414.

The plaintiffs claimed on a balance of account a sum of money exceeding 501. The defendants denied their indebtedness, and pleaded by way of set-off and counterclaim that the plaintiffs were indebted to them for money advanced and money due for work done, and goods sold and delivered, and they claimed a balance on the accounts in their favour exceeding 501. The cause was referred to an arbitrator, costs to abide the event. The arbitrator found that the defendants were indebted to the plaintiffs in a sum exceeding 507., and that the plaintiffs were indebted in like manner to the defendants in a sum exceeding 501., but that a balance was due to the plaintiffs on the whole account of 117. 10s. 3d.:-Held, by Kelly, C.B., that the plaintiffs and the defendants were each entitled to the costs of the issues on which they had succeeded, on the ground that the relief sought could not be given in a county court; and by Hawkins, J., contrary to his own opinion, but on the authority of Potter v. Chambers (4 C. P. D. 457), that the plaintiffs were entitled to their general costs of action. Neale v. Clarke, 4 Ex. D. 286; 41 L. T. 438.

Distributing Findings.]-In an action for freight the plaintiff claimed about 507., and the defendants counterclaimed about 107. for damage to the cargo, paying the remaining 401. into court. The action was remitted to a county court under 19 & 20 Vict. c. 108, s. 26, and the registrar certified a verdict for the plaintiff for 168.-Held, that the court would alter the certificate by distributing the findings on the issues, so as to enable the defendant to be allowed the

Claim that cannot be brought in County Court.]-A plaintiff recovered 767. in contract, and the defendant 647. The plaintiff is not deprived of his costs by s. 116 of the County Courts Act, 1888, as such action, being for more than 50%., could not have been brought in the county court. Goldhill v. Clarke, 5 R. 75; 68 L. T. 414.

The County Courts Act, 1867, s. 5, applies to actions which cannot be brought in a county court. Sampson v. Mackay, 10 B. & S. 694; 38 L. J., Q. B. 245 ; L. R. 4 Q. B. 643; 20 L. T. 807; 17 W. R. 883. See now s. 116 of County Courts Act, 1888.

But the circumstance that the action could only be brought in a superior court is to be taken into consideration by the court or a judge in exercising their discretion under that section. Ib.

Slander.]-A. suing B. for an assault, with a count for slander, and obtaining a verdict on the first count for 57., but failing to establish a cause of action on the second count, is entitled to no costs. Smith v. Harnor, 3 C. B. (N.s.) 829.

In an action for slander commenced in a superior court after the passing of the 30 & 31 Vict. c. 142, a verdict was found for the plaintiff for 107., and the judge refused to certify. On an application to the court for costs-Held, assumiing s. 5 to apply to cases in which the county court had no jurisdiction, that, as the plaintiff had recovered an amount much beyond what would have entitled him to costs under the general law applicable to actions for slander, and as he could not have sued in the county court, he ought to be allowed his costs. Gray v. West, 9 B. & S. 196; 38 L. J., Q. B. 78; L. K. 4 Q. B. 175; 20 L. T. 221; 17 W. R. 497.

The 30 & 31 Vict. c. 142, s. 5, applies to all actions, whether capable of being commenced or not in the county court. In an action for slander the plaintiff recovered 57. damages in a superior court. On an application for a rule for costs :—Held, that inasmuch as he had necessarily brought his action in a superior court, and had recovered an amount of damages sufficient, in the absence of evidence to the contrary, to warrant the inference that his conduct in bring

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