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ing it was neither frivolous nor vexatious, he was | Ord. LXV. r. 12, in actions founded on contract entitled to a rule for costs. Craven v. Smith, 38 L. J., Ex. 90; L. R. 4 Ex. 146; 20 L. T. 400; 17 W. R. 710.

Title to Land. The provision of the 15 & 16 Vict. c. 54, s. 4, authorising a judge to grant a certificate for costs, where the cause of action is one for which a plaint could not have been brought in a county court, does not apply to the case where, to a good cause of action which might have been brought in the county court, the plaintiff joins a claim of title to land which, at the trial, proves to be unfounded. Blackmore v. Higgs, 33 L. J., C. P. 157; 15 C. B. (N.S.) 790; 10 Jur. (N.S.) 703; 10 L. T. 33; 12 W. R. 476. In an action brought in the high court the plaintiff alleged that he was the owner in fee simple of certain premises the value of which exceeded 501. by the year, and he claimed damages for the injury done to his reversion by the defendant's interference with the flow of water in a pipe laid through the defendant's land, to which the plaintiff claimed to be exclusively entitled in respect of his own premises. The defendant admitted the value of the premises, but by his pleading denied the plaintiff's title, and set up a title to the use of the water in himself:-Held, that, by reason of the question of title which was involved, the action was not one which could have been commenced in the who had recovered less than 107., was not deprived county court, and consequently that the plaintiff. of his costs by sect. 116 of the County Courts Act, 1888. Howorth v. Sutcliffe, 64 L. J., Q. B. 729; [1895] 2 Q. B. 358; 14 R. 722; 73 L. T. 277; 44 W. R. 33; 59 J. P. 678—C. A.

A jury returned a verdict of 37. 10s. in an action for damages to the plaintiff's reversion by removing stones, &c. The pleas denied his interest and set up a right under a crown lease. The defendant abandoned at the trial all questions as to the plaintiff's interest and grounded his right under a reservation in an inclosure act only-Held, that the plaintiff was entitled to Williams v. Jones, 15 L. T. 248; 15 W.

costs.

R. 133.

That plaintiff would have got a very small sum in damages, or reported due to him upon the account, is not to preclude him from costs, if the title to the land is in question, and he proves his

right. Plaintiff, if he chooses to waive it, cannot be compelled to go into the office to take the account. Hearne v. Riverston (Lord), 2 Moll.

487.

The plea of not possessed, to an action of trespass quare clausum fregit, does not oust the jurisdiction of a county court; and if the title did not come in question on the trial, and the plaintiff recovers a sum not exceeding 57. he is Latham v. Spedding, 2 L. M. & P. 378; 17 Q. B. 440; 20 L. J., Q. B.

not entitled to costs.

302; 15 Jur. 576.

In an action of trespass, where the main issue to be determined was one of title to land, the plaintiffs claimed an injunction and damages. The action was tried before a judge with a jury. The jury found a verdict for the plaintiffs with 408. damages. The judge gave judgment for the plaintiffs, and granted the injunction, but made no order as to costs :-Held, that the plaintiffs were not entitled to costs. St. John's College, Cambridge v. Pierrepont, 61 L. J., Q. B. 19; 66

L. T. 88.

in which the plaintiff recovers by judgment or otherwise a sum (exclusive of costs) not exceeding 501., he shall be entitled to no more costs than he would have been entitled to had he court or a judge otherwise orders :-Held, that brought his action in a county court, unless the this rule does not apply to actions which could not have been brought in a county court. Saywood v. Cross, 54 L. J., Q. B. 17; 14 Q. B. D. 53; 51 L. T. 601; 33 W. R. 135.

that when a counterclaim is against a person Counterclaim against Third Party.]-Semble, not a party to the action, s. 24, sub-s. 3, of the Judicature Act, 1883, and Ord. XXI. rr. 11, 12, 13, 14, do not render s. 5 of the County Courts Lewin v. Trimming, 21 Q. B. D. 230; 59 L. T. Act, 1867, applicable to such a counterclaim.

511; 37 W. R. 16.

Not applying to Costs of Counterclaim.] Ord. LXV. r. 12, by which a plaintiff, who recontract, is entitled only to costs on the county covers a sum not exceeding 507. in an action of court scale unless the court or a judge otherwise orders, does not apply to the case of a counter487. on his claim, and also succeeded upon a claim. Where, therefore, a plaintiff recovered counterclaim for 1237. :-Held, that for the purcosts of the counterclaim followed the ordinary poses of taxation the claim and counterclaim must be treated as independent actions; that the rule as to costs, and that the plaintiff was entitled to have the costs of his defence to the counterclaim taxed on the high court scale. 543; 60 L. T. 912; 37 W. R. 329-C. A. Amon v. Bobbett, 58 L. J., Q. B. 219; 22 Q. B. D.

The County Courts Act, 1867, s. 5, does not apply to counterclaims, so that where a plaintiff counterclaim in tort for 10., the defendant in proves a claim for 401., and the defendant a the absence of any order as to costs, will be entitled to the costs of proving his counterclaim and of the issues, so far as they relate thereto. Blake v. Appleyard, 47 L. J., Ex. 407; 3 Ex. D.

195; 26 W. R. 592.

In an action for work and labour done, the plaintiff recovered a verdict for 201. and costs on his claim, and also obtained a verdict with costs on a counterclaim for board and lodging :Held, that he was entitled to the full costs of the counterclaim, and, in addition thereto, the costs of the original action, in so far as the same were not included in the costs of the counterclaim. Griffiths v. Patterson, 22 L. R., Ir. 656—C. A.

Specific Performance.]-A suit for specific performance of sale of leasehold property for 1507., subject to rent of 927. 10s. and covenant to keep insured, is a proper case to allow full

costs, notwithstanding 30 & 31 Vict. c. 142. Carpmael v. Carvell, is W. R. 513.

close a mortgage for 65l., where both plaintiff Foreclosure Action.]-In an action to foreand defendant resided at the same place :-Held, that the plaintiff was entitled only to such costs as he would have obtained in the county court. Simons v. McAdam (L. R. 6 Eo. 324), followed. Crozier v. Dowsett, 55 L. J., Ch. 210; 31 Ch. D. 67; 53 L. T. 592; 34 W. R. 267.

In a suit to foreclose a mortgage for 401., where both plaintiff and defendant lived at the Breach of Promise of Marriage.]-By same place:-Held, that the plaintiff was

entitled only to such costs as he would have obtained in the county court. Simons v. McAdam, 37 L. J., Ch. 751; L. R. 6 Eq. 324; 18 L. T. 678; 16 W. R. 693.

Copyright-Infringement-Less than £10 recovered.]-Under the provisions of 3 & 4 Will. 4, c. 15, s. 2, a successful plaintiff in an action for penalties for infringement of dramatic copyright was entitled to receive double costs. Double costs given by any public act are abolished by 5 & 6 Vict. c. 97, s. 2, which substitutes for such costs a full and reasonable indemnity, to be taxed by the proper officer. In an action for infringement of dramatic copyright under the above act, the plaintiff claimed six penalties of 40s. each. The defendant paid into court Sl. in respect of four of such penalties, and the plaintiff took the money out of court in satisfaction of so much of the claim in respect of which it was paid in, and proceeded to tax his costs under Ord. XXII. r. 7. The master refused to tax on the ground that plaintiff, having recovered a sum of less than 107. in an action founded on tort, was not entitled to costs by reason of the provision of s. 116 of the County Courts Act, 1888-Held, that the plaintiff was entitled to have his costs taxed. Reere v. Gibson, 60 L. J., Q. B. 451; [1891] 1 Q. B. 652; 64 L. T. 141; 39 W. R. 420.

Where Solicitor is Plaintiff.]-Section 5 of the County Courts Act, 1867, which deprives plaintiffs in actions commenced in the high court of costs if less than 20/. in contract, or 107. in tort, is recovered, applies to an action in which a solicitor is plaintiff. Blair v. Eisler, 57 L. J., Q. B. 512; 21 Q. B. D. 185; 59 L. T. 337; 36 W. R. 767.

Costs of Execution.]-Section 30 of 19 & 20 Vict. c. 108, does not deprive a plaintiff of the costs of a writ of execution. Armitage v. Jessop, 36 L. J., C. P. 63; L. R. 2 C. P. 12; 12 Jur. (N.S.) 963; 15 L, T. 214; 15 W. R. 130.

Agreement to Refer.]-The parties by a reference in an action may contract themselves out of the provisions of the County Courts Act as to costs when less than 207. is recovered. Lang v. Eakin, 16 W. R. 60.

Action against County Court Bailiff.]-A bailiff of a county court, who is sued for taking goods under an execution of that court, is within the exception of 9 & 10 Vict. c. 95, s. 128; and the plaintiff in such action, unless he recovers more than 207., or the judge certifies, is deprived of costs by s. 139. Man v. Buckerfield, 2 L. M. & P. 55; 20 L. J., Q. B. 265; 15 Jur. 57.

Transfer to County Court-Less than £50 recovered.]-If in an action commenced in the high court and transferred to a county court less than 501. is recovered, s. 116 of the County Courts Act, 1888, applies, and not s. 65, and only county court costs can be given as to any part of the action-Per Kay, L.J. Harris v. Judge, 61 L. J., Q. B. 577; [1892] 2 Q. B. 565; 67 L. T. 19; 41 W. R. 9.

ment for the plaintiff for less than 207., the plaintiff is entitled to his costs subsequent to the transfer but not to his costs incurred before such transfer, unless he obtains a certificate under s. 116. Armitage v. Fison, 67 L. T. 415.

Section 116 of the County Courts Act, 1888 (relating to actions on contract in which less than 207. is recovered), applies to actions brought in the high court and transferred to the county court under s. 65; it applies to all the costs in such actions, including those costs incurred after the order of transfer. Armitage v. Fison (67 L. T. 415) overruled. White v. Cohen, 62 L. J., Q. B. 274; [1893] 1 Q. B. 580; 4 R. 352; 68 L. T. 305; 41 W. R. 396—C. A.

Removal of Action to Superior Court.]-Although an action may have been moved from a county court into a superior court at the instanceof the defendant, the judge may refuse to certify for the costs of a plaintiff recovering a sum insufficient to carry costs under the County Courts Act, 1867, s. 5. Flitters v. Allfrey, 44 L. J., C. P. 10, n. L. R. 10 C. P. 29; 31 L. T. 881.

A plaintiff commenced an action in detinue in the Mayor's Court. At the instance of the defendant it was removed by certiorari into the Queen's Bench, where the plaintiff recovered 37. The judge who tried the cause refused to certify under s. 5, to give him his costs :-Held, that he was not entitled to his costs of the action. Pellas v. Breslauer, 40 L. J., Q. B. 161; L. R. 6 Q. B.. 438; 24 L. T. 762; 19 W. R. 779.

Order XIV. Less than £50 recovered.]—By the County Courts Act, 1888, s. 116, if in an action founded on contract, the plaintiff shall recover a sum of 207. or upwards, but less than 50%., he shall not be entitled to any more costs. than he would have been entitled to if the action had been brought in a county court. Provided that, if in any action founded on contract the plaintiff shall within twenty-one days after the service of the writ, or within such further time as may be ordered by the high court or a judge thereof, obtain an order under Ord. XIV. empowering him to enter judgment for 201. or upwards, he shall be entitled to costs according to the scale for the time being in use in the supreme court. The plaintiff, in an action founded on contract, claimed 487. He obtained leave under Ord. XIV. to sign judgment for 457., and proceeding to trial recovered the balance of his claim with costs :-Held, that he was entitled by s. 116 (2) of the County Courts Act, 1888, to the costs of the whole action on the high court scale, although he had recovered less than 501. Barker v. Hempstead, 58 L. J., Q. B. 369; 23 Q. B. D. 8; 60 L. T. 640; 37 W. R. 685.

An action of contract brought in the high court for more than 50%. was remitted to the county court after the plaintiffs had recovered less than 207. under Ord. XIV. They recovered in all less than 501. :-Held, that the plaintiffs. were not entitled to costs on the supreme court scale in respect of the part of the proceedings which had taken place in the high court.. Wilson v. Statham, 60 L. J., Q. B. 725; [1891] 2 Q. B. 261; 39 W. R. 686.

Effect of, on Arbitrations.]-See ARBITRATION.

Less than £20 recovered.]-Where an action commenced in the high court is transferred to the county court under s. 65 of the Reference of Action-Costs to abide the Event County Courts Act, 1888, and results in a judg--Sum Recovered.]-By an order made by con

sent of the parties, an action on a building contract was referred to an arbitrator to ascertain the amount, if any, due from the defendant to the plaintiff," the costs of the action, reference, and award, to abide the event." The arbitrator found the sum due to the plaintiff was 197. 28. 7d., upon which an order was made for judgment for the plaintiff for that sum without costs :-) -Held, that the plaintiff had recovered in the action by judgment a sum not exceeding 207., and that he was therefore deprived of his costs of the action by the County Courts Act, 1867, s. 5, unless he got a certificate or order under that section. Jones v. Jones (7 C. B. (N.s.) 832) overruled. Fergusson v. Davison, 51 L. J., Q. B. 266; 8 Q. B. D. 470; 46 L. T. 191; 30 W. R. 462-C. A.

The act does not apply to the case of a reference without any action. Ib.

Where a cause was referred, before trial, by a judge's order, with power to certify the costs of the cause, to abide the event of the cause, and the award was 37. 4s. 3d. to the plaintiff, but without a certificate:-Held, that the 13 & 14 Vict. c. 61, s. 11, did not apply, there being no recovery by judgment; and that he was entitled to the costs of the cause. Jones v. Jones, 7 C. B. (N.S.) 832; 29 L. J., C. P. 151; 6 Jur. (N.s.) 826; 1 L. T. 373; 8 W. R. 243. See preceding case. Where a cause is referred, by consent of parties, after issue joined, the costs of the cause to abide the event of the award, and the arbitrator finds all the issues for the plaintiff, and awards that a sum not exceeding 201. is due from the defendant to the plaintiff in respect of the breaches of contract alleged in the declaration, the plaintiff recovers that sum within 13 & 14 Vict. c. 61, s. 11, and is deprived of costs by that section. Cowell v. Amman Aberdare Colliery Co., 6 B. & S. 333; 34 L. J., Q. B. 161; 11 Jur. (N.S.) 687; 12 L. T. 451; 13 W. R. 715.

Where a plaintiff, upon a compulsory order of reference, by which the costs of the cause are to abide the event of the award, recovers less than 107., he is not entitled to costs, without an order. Robertson v. Sterne, 13 C. B. (N.S.) 248; 31 L. J., C. P. 362; 9 Jur. (N.S.) 332; 7 L. T. 462; 11 W. R. 94.

recovered being the action against both defendants, he was deprived of his costs by the County Courts Act, 1867, s. 5, inasmuch as he recovered in that action less than 207., and he was not allowed to tax his costs of the cause against L. alone. Balmain v. Lickfold, 44 L. J., C. P. 94; L. R. 10 C. P. 203; 32 L. T. 67; 23 W. R. 310.

A cause having been referred, together with all matters in difference between the parties, the costs of the cause to abide the event of the reference, the arbitrator awarded-first, as to the cause, that there was due to the plaintiff from the defendant, the sum of 259l. 1s.; and, secondly, as to the matters in difference other than the cause, that there was due from the plaintiff to the defendant the sum of 2427. 13s. 10d., and the arbitrator directed the latter sum to be allowed out of and deducted from the damages and costs recoverable by the plaintiff in the action, and the balance to be paid to the plaintiff :-Held, that the event of the reference was in favour of the plaintiff, and that he was not precluded from recovering his costs of the action by the County Courts Act, 1867, s. 5. Stevens v. Chapman, 40 L. J., Ex. 123; L. R. 6 Ex. 213; 24 L. T. 478; 19 W. R. 958.

An action of slander after issue joined and before trial, was by agreement referred, the costs of the cause to abide the event of the award. The arbitrator found one issue for the plaintiff, with twenty shillings damages :-Held, that he was entitled to the costs of the cause. Frean v. Sargent, 2 H. & C. 293; 32 L. J., Ex. 281; 8 L. T. 467; 11 W. R. 808.

A verdict was taken at the trial for 137., subject to a reference. The costs of the cause were to abide the event of the award. The arbitrator ordered that the verdict should be reduced to 21. 168. 111⁄2d. :-Held, that the plaintiff was not entitled to costs, the reference having been after verdict given. Smith v. Edge, 2 H. & C. 659; 33 L. J., Ex. 9; 9 Jur. (N.S.) 1300; 9 L. T. 445; 12 W. R. 133.

A cause was referred, and by the order of reference the party in whose favour the award should be made was to be at liberty to enter up judgment for the sum awarded, as if a verdict had been obtained. The arbitrator awarded 207.:-Held, that the costs must be taxed according to the reduced scale. Waller v. Smith, 3 M. & W. 136; 6 D. P. C. 103; M. & H. 326; 7 L. J., Ex. 15.

A plaintiff sued L. for 3651. for goods sold and delivered. On the day after the writ was issued L. paid to the plaintiff 3197. which he accepted on account of his claim. After declaration L. pleaded in abatement the non-joinder Where a cause is referred at nisi prius, care of H., whereupon the plaintiff amended the should be taken to give the arbitrator the same writ and declaration under the Common Law power of certifying that it was a fit cause to be Procedure Act, 1852, s. 38, by adding the name tried before a judge as the judge at nisi prius of H. as joint contractor. Both defendants would have had; since otherwise, if he awarded pleaded never indebted, and also a plea that to the plaintiff a sum under 20., the master after the writ in the action had been issued will not be warranted in taxing the costs, either against the defendant L. and before the action as between party and party, or between attorney was commenced against the other defendant by and client, except according to the reduced scale. amendment pursuant to s. 38, the defendants Wallen v. Smith, 5 M. & W. 159; 7 D. P. C. 394; satisfied the plaintiffs' claim by payment. The 2 H. & H. 1; 8 L. J., Ex. 164. cause having been referred to an arbitrator, costs In an action on an attorney's bill, to which to abide the event, with power to the arbitrator there was a set-off, the cause, being partially to certify as a judge at nisi prius, the arbitrator by his award found that the defendants were indebted to the plaintiff in 3221., and that the defendants did, as in their plea alleged, satisfy 319., part of such debt, by payment, and the arbitrator directed that the verdict should therefore be entered for the plaintiff for 37., being the difference between the two sums of 3221. and Costs of Reference and Award.]—Where 3197., and he gave no certificate as to costs: a cause is referred on the usual terms, costs to Held, that the only action in which the plaintiff abide the event, the costs of the reference and

heard, was referred to the master, who was to enter into the whole account. The master found a balance in favour of the plaintiff of 21. 128. :— Held, that the plaintiff was not entitled to costs on the higher scale without a judge's certificate. Parker v. Serle, 6 D. P. C. 334.

award to be at the discretion of the arbitrator, 61, s. 12, where the verdict returned for the and by the award less than the sum of 201. is plaintiff is exactly 201. in an action of contract, recovered, and the costs of the reference and or exactly 57. in an action of tort. Garby v. award are awarded to be paid by the defendant, Harris, 7 Ex. 591; 21 L. J., Ex. 160; 16 Jur. the costs of the reference are not to be taxed on 456. the lower scale. Holland v. Vincent, 9 Ex. 274; 2 C. L. R. 407; 23 L. J., Ex. 78; 17 Jur. 1059; 2 W. R. 96. S. P., Nicholson v. Sykes, 9 Ex. 357; 2 C. L. R. 992; 23 L. J., Ex. 193.

An action of contract was compulsorily referred to a master, and it was ordered that the costs of the cause should abide the event, and that the costs of the reference should be in the discretion of the master. The master awarded to the plaintiff a sum less than 207. and directed the defendant to pay the costs of the reference :Held, that the plaintiff was not entitled to these costs; for that they could only be recovered upon the judgment, entered on the award, and (the judgment being for a sum not exceeding 201.) the 13 & 14 Vict. c. 61, s. 11, deprived the plaintiff of costs. Moore v. Watson, 36 L. J., C. P. 122; L. R. 2 C. P. 314; 15 L. T. 662; 15

W. R. 429.

When an action is referred by consent to arbitration upon the terms that the costs of the cause shall abide the event, and the costs of the award shall be in the discretion of the arbitrator, if the arbitrator decides in favour of the plaintiffs he may lawfully direct the defendant to pay the cost of the reference and award, although the plaintiff may be deprived of the costs of the cause under the County Courts Act, 1867, s. 5. Whether Moore v. Watson (L. R. 2 C. P. 314) was correctly decided, quære. Gallatti v. Wakefield, 4 Ex. D. 249; 48 L. J., Ex. 70; 40 L. T. 30-C. A.

In an action of trover and of debt a verdict was taken for the plaintiff for the damages claimed, subject to a reference," the costs of the cause to abide the event of the award, and the costs of the reference and award to be in the discretion of the arbitrator." The arbitrator awarded that the verdict should be entered for 27. 10s. as to the claim in trover, and for 71. 128. 8d. as to the claim in debt, and directed the defendant to pay the costs of the reference and award. He had the power of certifying for costs, but gave no certificate. The master declined to tax on behalf of the plaintiff either his costs of the cause or of the reference and award: -Held, that the plaintiff was not entitled to the costs of the cause, but that he was entitled to those of the reference and award, although he had recovered in the cause sums not exceeding 107. in tort and 207. in contract. Forshaw v. De Wette, 40 L. J.. Ex. 153; L. R. 6 Ex. 200; 24 L. T. 397; 19 W. R. 777.

2. AMOUNT RECOVERED. Action on Contract-£50 Recovered.]-Order LXV. r. 12, of the Rules of the Supreme Court, 1883, is not inconsistent with, nor superseded nor repealed by s. 116 of the County Courts Act, 1888. A plaintiff who has claimed and recovered the exact sum of 501. in an action founded on contract in the high court, and who has obtained no certificate from the judge for high court costs, is only entitled to costs on the county court scale. Millington v. Harwood, 61 L. J., Q. B. 582; [1892] 2 Q. B. 166; 66 L. T. 576; 40 W. R. 481-C. A.

The judge before whom a cause is tried has power to certify for costs under 13 & 14 Vict. c.

Less than £50 recovered "in the Action."]— An action on a partnership account was by consent referred to an arbitrator. The terms of reference were that "all matters in difference between the parties in the action" were to be referred, and that "the costs of the action " should abide the award. Subsequently to this order of reference, the parties agreed to submit to the arbitrator a further matter of account outside the action. The arbitrator awarded 407. to the plaintiff on his claim, and found that a further sum of 147. 28. was due to him on the subsequent account :-Held, that the plaintiff had recovered "in the action" less than 50%., and therefore came under the provisions of Ord. LXV. r. 12, of the Rules of 1883, whereby the costs recoverable were limited to county court costs in actions of contract where less than 50l. is recovered, unless by leave of the court the high court scale is allowed. Emmett v. Heyes, 36 W. R. 237.

Nominal Damages-Bond-£20 Penalty.]— Judgment having been given for a plaintiff in an action on a bond in the penal sum of 20%. conditioned for payment of 127., he is deprived of costs by 13 & 14 Vict. c. 61, s. 11, on the ground, first, that the nominal damages do not make the sum recovered exceed 201.; and, secondly, per Pollock, C.B., and Watson, B., that the sum recovered within the meaning of that section was 121. only. Gowens v. Moore, 3 H. & N. 540; 27 L. J., Ex. 391.

Sum claimed no Criterion.]-A plaintiff sued in trespass in the supreme court of the island of Jamaica, laying his damages at 3,0007., a sum above the limit of the jurisdiction of the local courts in that island, and recovered a verdict for 40s. :-Held, that the sum recovered by the verdict, and sanctioned by the judgment, and not the sum laid in the declaration, was the test to be applied to ascertain the right to sue in the supreme court, and to entitle the plaintiff to supreme court costs. Emery v. Binns, 7 Moore, P. C. 195.

Proceedings stayed on Payment.]—There were counts for unliquidated and liquidated damages in a declaration. The defendant, after judgment by default and notice of executing a writ of inquiry, obtained an order to stay all further proceedings on payment of 167. 148. 8d. and costs: -Held, that the costs must be taxed on the reduced scale. Horn v. Pocock, 2 D. (N.S.) 948; 12 L. J., Q. B. 274; 7 Jur. 813.

In such a case the defendant should get it made part of the judge's order, upon the application, that costs of the action should be taxed upon the higher scale. Ib.

Where, in an action for unliquidated damages, the defendant, just before the assizes, in order to save the expenses of the trial, agreed under a judge's order to withdraw his pleas, and that the plaintiff should be at liberty to sign judgment for 117. 128., and that, on payment of that sum, with costs to be taxed, the proceedings should be stayed-Held, that the costs must be taxed on the reduced scale. Cook v. Hunt, 5 M. & W.

161; 7 D. P. C. 397; 2 H. & H. 37; 8 L. J., Ex. | exceeding 20., the plaintiff's costs are to be 216; 3 Jur. 753. taxed on the lower scale. Tonge v. Chadwick, 5 El. & Bl. 950; 25 L. J., Q. B. 128; 2 Jur. (N.S.) 232; 4 W. R. 266.

Payment into Court.]-In an action for a sum not exceeding 207., the defendant paid the sum claimed into court, and the plaintiff took it out in satisfaction:-Held, that it was a sum recovered in the action within 13 & 14 Vict. c. 61, s. 11, and that the plaintiff was not entitled to his costs. Parr v. Lillicrap, 1 H. & C. 615; 32 L. J., Ex. 150; 9 Jur. (N.S.) 80; 7 L. T. 425;

11 W. R. 24.

So where a defendant pays money into court which the plaintiff accepts in satisfaction of his claim, he recovers the amount within the meaning of 13 & 14 Vict. c. 61, s. 11, which, in certain cases, deprives a plaintiff of costs if he "shall recover a sum not exceeding 201." Boulding v. Tyler, 3 B. & S. 473; 32 L. J., Q. B. 85; 9 Jur. (N.S.) 794; 11 W. R. 307. S. P., Arkins v. Armstrong, 17 W. R. 711.

But where in an action brought to recover a sum beyond the jurisdiction of the county court the defendant paid into court a sum under 201. which the plaintiff accepted in satisfaction and discharge of his claim, and the parties dwelt more than twenty miles apart :-Held, that the plaintiff was entitled to his costs, under 15 & 16 Vict. c. 54, s. 4. Waylett v. Windham, 2 H. & C. 982; 33 L. J., Ex. 172; 9 L. T. 725.

A plaintiff who recovers in an action for a debt a sum which, together with a sum paid into court on a plea of tender, exceeds 207., is entitled to the costs of the action, notwithstanding 13 & 14 Vict. c. 61, s. 11. Crosse v. Seaman, 11 C. B. 524; 2 L. M. & P. 273.

In an action in which there were three counts, each in tort, and the parties resided within the jurisdiction of the civil bill court of the county in which the causes of action had arisen, the jury found a verdict for the plaintiff for 21. damages on two counts, and that 57., which had been lodged in court by the defendant on foot of the third count, was sufficient :-Held, that the plaintiff had not recovered 77., and therefore was not entitled to any costs of the action. Myers v. Phelan, 26 L. R. Ir. 218-C. A.

"Admitted Set-off."]-A set-off admitted by the plaintiff on his writ is an "admitted set-off" within s. 57 of the County Courts Act, 1888, even although not admitted by the defendant, and if the amount recovered is, by such admission, reduced by 50%, the plaintiff is only entitled to costs on the county court scale. Lovejoy v. Cole, 64 L. J., Q. B. 120; [1894] 2 Q. B. 861;

10 R. 482; 71 L. T. 374; 43 W. R. 48.

Amount"Recovered."]-In an action of contract a verdict was given for the plaintiff for 76., and for the defendant on a set-off, which was not admitted by the plaintiff, for 647., and judgment was given for the plaintiff for the balance of 127. :- Held, that the amount "recovered" by the plaintiff within s. 116 of the County Courts Act, 1888, was the balance only of 121. for which judgment was given; but as there was no admitted set-off under s. 57-which must be a set-off admitted by both parties-the action being for over 50., was one which could not have been brought in a county court, and therefore s. 116 did not apply to deprive the plaintiff of his costs on the high court scale. Goldhill v. Clarke, 5 R. 75; 68 L. T. 414.

If the amount of the plaintiff's claim is reduced by the defendant's set-off to a sum not

court proves a debt exceeding 20., and the de-
Where a plaintiff in an action in a superior
fendant proves a set-off, which reduces the
verdict to a sum not exceeding 201., the plaintiff
recovers the balance only, within 13 & 14 Vict.
c. 61, s. 11, and therefore is not entitled to costs.
Beard v. Perry, 2 B. & S. 493; 31 L. J., Q. B.
180;
8 Jur. (N.S.) 914; 6 L. T. 352; 10 W. R.

619.

debted and set-off. The writ of summons had Action on the money counts. Pleas never inbeen indorsed for more than 201. On the trial the jury found that the defendant was indebted in 247. 138., and no further, and that there was a set-off of 197. 18s. 5d. This finding was entered on the postea, and the plaintiff had a verdict for the balance, 4l. 14s. 7d. The master taxed the costs on the higher scale :--Held, that the plaintiff was not deprived of his costs by the county courts acts, as the amount of the debt exceeded 207., though reduced by set-off, but that he had recovered less than 20%., and therefore his costs must be taxed on the lower scale. Tonge v. Chadwick, 5 El. & Bl. 950; 25 L. J., Q. B. 128; 2 Jur. (N.s.) 232 ; 4 W. R. 266.

which a plaint might have been entered in a Unless a plaintiff, in an action of contract for county court, actually recovers more than 20%., whatever the amount of his claim, and whether reduced by payment, by tender, or by set-off, he is by 13 & 14 Vict. c. 61, s. 11, deprived of costs, or he obtains a rule or order under 15 & 16 Vict. unless the judge certifies at the trial under s. 12, c. 54, s. 4. Ashcroft v. Foulkes, 18 C. B. 261; 25 L. J., C. P. 202; 2 Jur. (N.S.) 449; 4 W. R. 457. S. P., Rumley v. Irwin, 18 C. B. 312; 25L. J., C. P. 205, n.; 2 Jur. (N.s.) 450, n.

Tender.] The act does not deprive the plaintiff of costs where the verdict is reduced to a sum under 201. only by a tender, but which, with the amount tendered, is not less than 201. Cross v. Seaman, 2 L. M. & P. 273; 11 C. B. 524; 15 Jur. 512.

A plea of tender is not a plea in bar; therefore the sum paid into court under such plea is a sum recovered in the action. A plaintiff who in an action for more than 207., recovers a sum which, together with a sum paid into court under a plea of tender, exceeds 201., is entitled Cooch v. Maltby, 23 L. J., Q. B. 305; 2 W. R.. to have the costs taxed on the higher scale.

557 See next case.

Action to recover 28i. 198. 4d. for goods sold and delivered. Pleas, except as to 26/. 10s. 6d., never indebted; and as to that sum a tender. The jury found for the defendant on the plea. of tender, but that the plaintiff was entitled to 21. 8s. 10d. more. The plaintiff did not obtain a certificate that the cause was proper to be tried in a superior court :-Held, that his costs wereto be taxed on the lower scale. James v. Vane (Lord), 2 El. & El. 883; 29 L. J., Q. B. 169; 6. Jur. (N.s.) 731; 2 L. T. 281; 8 W. R. 446.

Where a plaintiff claims more than 207., but obtains a verdict for a sum under 201., by reason. of a tender of the remainder of the amount,. claimed before action, his costs must be taken on the reduced scale. Dixon v. Walker, 7 M. & W. 214; 8 D. P. C. 87; 10 L. J., Ex. 43. S. P.,. Crosse v. Sraman, 11 C. B. 524.

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