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3. WHETHER CONTRACT OR TORT. Livery Stable Keeper.]-A declaration alleged that the plaintiff delivered a horse to the defendant as a livery and bait stable-keeper, to be taken care of, and kept in a separate stall: breach, that he did not take care of the horse or keep it in a separate stall, in consequence of which it was injured and kicked by other horses: -Held, that this was an action of contract; and consequently the plaintiff, having recovered by verdict less than 207., was, in the absence of a certificate from the judge who tried the cause, deprived of costs by the 13 & 14 Vict. c. 61, ss. 11 and 12. Legge v. Tucker, 1 H. & N. 500; 26 L. J., Ex. 71; 2 Jur. (N.S.) 1235; 5 W. R. 78.

Injury to Subject of Bailment-Negligence.] -An action by a bailor against a bailee for reward for a breach of his common-law duty to keep safely the thing entrusted to his care is an action founded on tort within the meaning of s. 116 of the County Courts Act, 1888, and a plaintiff in such an action who recovers not less than 207. is entitled to his full costs of the action. Turner v. Stallibrass, 67 L. J., Q. B. 52; [1898] .1 Q. B. 56; 77 L. T. 482; 46 W. R. 81-C. A.

Carriers-Goods.]-A declaration stated that goods were delivered to common carriers, to be safely carried and delivered: breach, that they, not regarding their duty, so carelessly and negli gently conducted themselves that part of the goods was lost. The carriers suffered judgment by default, and the damages were assessed at 11l. 58. -Held, that this was an action on the case within 13 & 14 Vict. c. 61, s. 11, and was not an action of contract within 19 & 20 Vict. c. 108, s. 30, and therefore the plaintiff was entitled to ,costs. Tattan v. G. W. Ry., 2 El. & El. 844; 29 L. J., Q. B. 184; 6 Jur. (N.S.) 800; 8 W. R. 606. Contra, O'Sullivan v. Dublin, Wicklow and Waterford Ry., 16 W. R. 86.

A declaration alleged that the defendant at the time of the promise and negligence therein alleged, was the owner of a hackney cab, at the time of the promise conducted by his servant; that the plaintiff at his request hired it of him, and the defendant promised to convey the plaintiff's luggage safely, but not regarding his duty or promise, negligently lost the same:-Held, that the action was founded on contract, and that as a sum not exceeding 201. was recovered the plaintiff was deprived of costs under 30 & 31 Vict. c. 142, s. 5. Baylis v. Lintott, 42 L. J., C. P. 119; L. R. 8 C. P. 345: 28 L. T. 666.

A statement of claim alleged that the plaintiff, as vendor of goods, delivered them to the defendants, a railway company, as carriers for reward, the goods being consigned to the intending purchasers: that afterwards, and before the goods had been delivered to the consignees or claimed by them from the company, the plaintiff discovered that the consignees were insolvent, and, as unpaid vendor, gave notice to the company not to deliver the goods to the consignees, but to hold them to his order, and before the goods were delivered to the consignees, the plaintiff required the company to re-deliver them to him that the company refused to do so, and delivered them to the consignees, who absconded without paying for the goods. The plaintiff claimed their value, viz. 127. 168. 6d., as damages. The company paid the sum into court, and the plaintiff took it out in satisfaction :-Held, that

the action was founded on tort, and not on contract within s. 5 of the County Courts Act, 1867, and that the plaintiff having recovered a sum exceeding 107. was not deprived of costs by that section. Pontifex v. Midland Ry., 47 L. J., Q. B. 28; 3 Q. B. D. 23; 37 L. T. 403; 26 W. R. 209. S. C., and S. P., 35 L. T. 706; 25 W. R. 215.

But an action being brought against a railway company as a common carrier for damages for non-delivery of goods through negligence, the company paid into court a sum exceeding 10., but not exceeding 207., and the plaintiff took it out in satisfaction:-Held, that the action was founded on contract, and therefore the plaintiff was not entitled to costs under s. 5 of the County Courts Act, 1867. Fleming v. Manchester, Sheffield, and Lincolnshire Ry., 4 Q. B. D. 81; 39 L. T. 555; 27 W. R. 481-C. A.

Injury to Passenger.]—An action in the high court brought by a passenger against a railway company for an injury sustained by him through the negligence, amounting to a positive misfeasance, of the company's servants, is "an action founded on tort" within the meaning of s. 116 of the County Courts Act, 1888; and the fact that the passenger has a contract with the company, and a right of action against them for a breach thereof, does not for the purposes of that section make his action "an action founded on contract." If, therefore, the passenger in such a case recovers 201. or upwards, he is entitled to have his costs taxed on the high court scale. Taylor v. Manchester, Sheffield, and Lincolnshire Ry., 64 L. J., Q. B. 6; [1895] 1 Q. B. 134; 14 R. 34; 71 L. T. 596; 43 W. R. 120; 59 J. P. 100-C. A.

An action in respect of personal injuries to a passenger caused by the negligence of a railway company is an "action founded on tort" within s. 116 of the County Courts Act, 1888, although the negligence is also a breach of contract, and is so stated in the pleadings; and the action is equally one of tort whether the negligence consists in the doing on the omitting to do, an act. Kelly v. Metropolitan Ry., 64 L. J., Q. B. 568; [1895] 1 Q. B. 944; 14 R. 417; 72 L. T. 551; 43 W. R. 497; 59 J. P. 437—C. A.

Wrongful Conversion after Contract for Sale.] -The plaintiff, a dealer, bought an hydraulic press from the defendant, an auctioneer, at a sale, under conditions of sale requiring payment before delivery. Time was allowed for payment. Payment was tendered within the time allowed, but the defendant refused to deliver the press, having contracted to resell it, and in fact reselling it, subsequent to the tender. The plaintiff had also contracted to resell the press, after delivery, at a profit. In the action the sole issue in dispute-namely, whether there had been tender within the time allowed for payment was found in favour of the plaintiff, and evidence of the plaintiff's loss of profit on resale having been given as a measure of damage, judgment was given for the plaintiff for 297. 15s. 3d. The defendant contended that the action was one for breach of contract, and that costs would therefore only be recovered on the county court scale :-Held, that the action was for a wrongful conversion subsequent to and independent of the contract passing the property, and that it was therefore an action of tort in which, more than 201. having been re

covered, costs followed on the high court scale. | may certify within a convenient time after the Cohen v. Foster, 61 L. J., Q. B. 643; 66 L. T. trial. Chaplin v. Lery, 9 Ex. 673; 2 C. L. R. 616. 1024; 23 L. J., Ex. 200.

Detinue.]-A plaintiff by his statement of claim alleged that he was the owner and entitled to the possession of a picture, which the defendant detained from him, and the plaintiff claimed the picture or its value, and damages for its detention. At the trial the plaintiff recovered 101. as the value of the picture, and 1s. damages for its detention :-Held, that the action was founded on tort within s. 5 of the County Courts Act, 1867, so that the plaintiff, having recovered more than 10%. was entitled to his costs. Bryant v. Herbert, 47 L. J., C. P. 670; 3 C. P. D. 389; 39 L. T. 17; 26 W. R. 898-C. A.

The 34th section of the 23 & 24 Vict. c. 126, does not apply to an action of detinue. Danby v. Lamb, 11 C. B. (N.S.) 423; 31 L. J., C. P. 17; 5 L. T. 353; 10 W. R. 43.

Compare Brown v. Boorman, 11 Cl. & F. 1; 3 Q. B. 511; Courtenay v. Earle, 10 C. B. 73; 20 L. J., C. P. 7; 15 Jur. 15; Wood v. Finnis, 7 Ex. 363; 21 L. J., Ex. 138; 16 Jur. 936; Gorett v. Radnidge, 3 East, 62; Weall v. King, 12 East, 452; Brotherton v. Wood, 6 Moore, 141; 3 Br. & B. 54; 9 Price, 408.

4. CERTIFICATE OR ORDER.

Time for When Arbitrator Functus Officio.]An action having been referred, under the Common Law Procedure Act, 1854, s. 3, to a master, with all the powers of certifying of a judge at nisi prius, the costs of the cause and of the reference to be in the discretion of the master," the master made his award in favour of the plaintiff for a sum not exceeding 207., and directed that the costs of the cause and of the reference should be paid by the defendant. After the award had been taken up, the master indorsed on the award a certificate that there was sufficient reason for bringing the action in the superior court :-Held, that the certificate was bad, the master being functus officio when it was given. Bedwell v. Wood, 46 L. J., Q. B. 725; 2 Q. B. D. 626; 36 L.

T. 213.

An action of trespass was referred by consent to an arbitrator, who was to have all the powers of a judge at nisi prius as to certifying, and the costs of the cause were to abide the event. The arbitrator awarded to the plaintiff 27. 148., and gave no certificate for costs. After a considerable lapse of time the plaintiff obtained ex parte from the arbitrator a document in which he stated that it appeared to him at the reference that there was sufficient reason for bringing the action:-Held, that the court or a judge had power under 30 & 31 Vict. c. 142, s. 5, to order that the plaintiff be allowed his costs, but that the court would not act upon the document merely, and that under those circumstances the award ought to be remitted to the arbitrator. Hartland v. Newcastle-upon-Tyne Corporation, 39 L. J., Q. B.

67.

Where an action is brought in a superior court for a cause for which a plaint might have been entered in the sheriff's city court, and the plaintiff recovers less than 201., a certificate for costs must be granted forthwith. But if, on the application for a certificate immediately after the trial, the judge takes time to consider, and the defendant does not object, he will be precluded from objecting that a certificate granted afterwards was not granted forthwith. Heden v. Atlantic Royal Mail Steam Navigation Co. 2 El. & El. 671; 29 L. J., Q. B. 191; 6 Jur. (N.S.) 677; 2 L. T. 170; 8 W. R. 410.

Under 9 & 10 Vict. c. 95, s. 129, a judge of a superior court may certify for costs at any time before the costs are taxed. Tharratt v. Trever,

6 Ex. 187; 20 L. J., Ex. 189. S. P., Mason v. Tucker, 4 H. & N. 536; 28 L. J., Ex. 271.

So, under the 13 & 14 Vict. c. 61, s. 12, the certificate of the judge who tries an action brought in the superior court, that it appeared to him at the trial that there was sufficient reason for bringing the action in that court, may be given and indorsed on the record at any time after the assizes and before taxation of costs. Bennett v. Thompson, 6 El. & Bl. 683; 25 L. J., Q. B. 378; 2 Jur. (N.S.) 670; 4 W. R. 609.

A cause in which the superior court and the county court had concurrent jurisdiction was brought in the former and tried in February, 1852, the defendant being then absent from England on a voyage to Australia; the plaintiff having obtained a verdict and accepted his damages, applied for costs under 15 & 16 Vict. c. 54, s. 4, in January, 1853 :-Held, not too late. Reid v. Gardner, 8 Ex. 651; 22 L. J., Ex. 253; 17 Jur. 442.

A cause was referred at the spring assizes, 1852, and on the 9th June the arbitrator awarded in favour of the plaintiff. An application by the plaintiff to a judge at chambers for costs, on the 7th February, 1853, under 15 & 16 Vict. c. 54, s. 4, was not too late. Morris v. Bosworth, 2 El. & Bl. 213; 22 L. J., Q. B. 276; 17 Jur. 438.

But the under sheriff on a writ of trial had no power to certify for costs after he had returned the writ. Knapman v. Pryer, 1 H. & N. 719; 26 L. J., Ex. 143.

By whom Granted.]-The judge who tries a cause is the only person who can certify to take a case out of the operation of the directions, where less than 201. is recovered; and therefore, if the judge dies without making his certificate, the plaintiff has no remedy. Southwell v. Bird, 7 D. P. C. 557; 1 W. W. & H. 569.

So, where a cause was referred by order of nisi prius, with power to the arbitrator to certify whether the cause was a proper one to be tried before a judge, and the arbitrator certified to that effect, but the judge died before the arbitrator's certificate was made known to him :-Held, that the court had no power to make an order for full costs. Astley v. Jay, 1 P. & D. 460; 9 A. & E. 702; 2 W. W. & H. 85; 8 L. J., Q. B. 104.

It is not necessary for the judge who certifies to enable a plaintiff to obtain full costs so as to hear the cause throughout. Nokes v. Frazer, 3 D. P. C. 339.

In other Cases.]-Where an action is brought for a cause for which a plaint might have been entered in the sheriff's court under the 15 & 16 Vict. c. 77, and the plaintiff recovers less than 201., a certificate for costs must be granted "forthwith" at the trial. But if the Action remitted to County Court.]-The sum recovered is between 207., and 507. the judge | certificate as to costs in sect. 116 of the County

Courts Act, 1888, only applies to actions tried in the high court, and therefore the county court judge has no power under that section to grant the certificate in an action transferred under s. 65. Harris v. Judge ([1892] 2 Q. B. 565), discussed. 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.

Where an action commenced in a superior court has been remitted to a county court under 30 & 31 Vict. c. 142, s. 10, the superior court has no longer any jurisdiction to make an order for costs under s. 5. Moody v. Steward, 40 L. J., Ex. 25; L. R. 6 Ex. 35; 23 L. T. 465; 19 W. R.

161.

Where a cause in a superior court is by order of a judge sent to be tried in a county court, the judge of the county court who tries the cause has power, under 30 & 31 Vict. c. 142, s. 5, to certify that there was sufficient reason for bringing the action in the superior court, so as to entitle the plaintiff to costs, and the issue sent down to the county court is the record on which he may certify. Taylor v. Cass, L. R. 4 C. P. 614; 20 L. T. 667; 17 W. R. 860.

An action was brought in the superior court, and sent down for trial in the county court, under 19 & 20 Vict. c. 108, s. 26, when the plaintiff obtained a verdict for 67. 158. above the amount of 157. paid into court. The registrar of the county court returned a certificate finding "a verdict for the plaintiff for 6l. 158. with costs"; and the plaintiff ex parte obtained a fiat to sign judgment, with costs, and entered judgment. The plaintiff had previously taken out a summons at chambers to sign judgment with costs, but had abandoned it. The defendant applied to have the judgment amended by striking out the words relating to costs, and the plaintiff applied for costs, if he was not entitled to them under the judgment:-Held, that the county court had no jurisdiction over the costs, and the registrar had no power to certify for costs. Farmer v. May, 50 L. J., Q. B. 295; 44 L. T. 148; 29 W. R. 612. See also, Emeny v. Sandes, 54 L. J., Q. B. 82; 14 Q. B. D. 6; 51 L. T. 641; 33 W. R. 187-C. A.

Assessment of Damages-Under-Sheriff.] -An under-sheriff, before whom damages are assessed in an action brought in the high court under a judgment signed in default of pleading, has no power to certify for costs on the high court scale under s. 116 of the County Courts Act, 1888, such power being now, under that section, exercisable only by the high court, or a judge of the high court. Cox v. Hill, 67 L. T. 26. See now s. 116 of County Courts Act,

1888.

The under-sheriff before whom a writ of inquiry is executed had the power of certifying on the record that there was sufficient reason for bringing the action in the superior court, given to the judge by 30 & 31 Vict. c. 142, s. 5. Craven v. Smith, 38 L. J., Ex. 90; L. R. 4 Ex. 146; 20 L. T. 400; 17 W. R. 710. Contra, Ayres v. Lovelock, W. N. (1874) 29.

By Court. The court or a judge has the power of certifying to give costs under 13 & 14 Vict. c. 61, s. 13, notwithstanding the power of certifying as a judge at nisi prius to give costs under s. 12, has by an order of reference been given to an arbitrator, who had failed to certify, the certificate under s. 13 being one

which a judge or the court has power to give, and different from that which a judge at nisi prius is empowered to give under s. 12. Sharp v. Eveleigh, 20 L. J., Ex. 282.

Grounds for Granting.] - The court will not lay down any general rule with regard to giving a plaintiff costs under 13 & 14 Vict. c. 61, s. 13. Palmer v. Richards, 2 L. M. & P. 376; 6 Ex. 335; 20 L. J., Ex. 323.

The refusal of the registrar of a county court to grant a summons under a mistaken idea of the court's jurisdiction, or the probability of greater costs by proceedings in the county court, is not a sufficient reason for a superior court allowing costs to a plaintiff in an action where the amount recovered is less than 207. in contract, or 107. in tort. Holborow v. Jones, 38 L. J., C. P. 22; L. R. 4 C. P. 14; 19 L. T. 320; 17 W. R. 54.

The distance at which a defendant resides from the plaintiff when the action is brought is not alone a ground for granting costs under 30 & 31 Vict. c. 142, s. 5. Thompson v. Dallas, 9 B. & S. 193; 37 L. J., Q. B. 133; L. R. 3 Q. B. 358; 18 L. T. 288; 16 W. R. 703.

An action claiming an injunction to restrain a trespass was tried in the high court, although the value of the property in dispute was within the limits fixed for the jurisdiction of the county court. The trial lasted some days, and ultimately the plaintiff succeeded, and was given 57. as damage:-Held, that, notwithstanding that the action might have been tried in the county court, it had proved to be a proper one to be disposed of in the high court, and the court would, therefore, in the exercise of its discretion, allow the plaintiff high court costs. Williams v. Allen, 60 L. T. 103.

A. brought an action against B. in the high court, asking for an injunction to restrain the defendants from excavating so as to injure the plaintiff's premises, and for damages. The writ was issued on the 17th April, 1888. The action came on for trial by consent on affidavit evidence, and without pleadings. The damages amounted to less than 107. The court granted an injunction, and assessed the damages at 5l., and directed the defendant to pay the costs, but if the action could have been brought in the county court, then only such costs as would have been incurred in the county court. Cooper v. Streeter, 60 L. T. 95.

In considering whether to certify for costs upon a verdict being found for a plaintiff in an action for slander, the judge, although he disapproves himself of the action having been brought, will give effect to an indication by the jury of a contrary opinion, and will treat a verdict for 40s, as such an indication. Hume v. Marshall, 37 L. T. 711.

The judge's power to certify exists where the question whether the plaintiff had reasonable cause for suing was compounded of facts and a doubtful point of law; and his power was not confined to mere facts, Swift v.Jewsbury, L. R. 9 Q. B. 560.

Semble, where, in an action against a jointstock company in a superior court, not having concurrent jurisdiction with a county court, it appears that, if the plaintiff had sued in the county court, he could not have obtained satisfaction from the property of the company, and that the shareholders reside out of the jurisdiction of the county court, that would afford

sufficient ground for giving the plaintiff his costs. Taylor v. Crowland Gas and Coke Co., 11 Ex. 1; 24 L. J., Ex. 233; 1 Jur. (N.s.) 358. A judge has no power to certify under 23 & 24 Vict. c. 126, where a right, though a small one, is really in issue. Gooding v. Britnall, 11 C. B. (N.S.) 148; 31 L. J., C. P. 5; 5 L. T. 397; 10 W. R. 79.

A plaintiff brought an action of trespass against the defendant in the county court, whereupon the defendant obtained a stay of proceed ings in the county court. The action being then brought in a superior court, the jury found all issues of fact in favour of the defendant; but the verdict was ultimately entered in favour of the plaintiff upon a point of law decided in his favour by the court in banc. The judge who tried the action declined to certify for costs, and the court concurred in his adverse opinion to the plaintiff on the merits :-Held, that the fact of the defendant having moved the action into a superior court set no limit upon the discretion of the judge, and a rule to allow costs was refused. Flitters v. Allfrey, 44 L. J., C. P. 10, n. ; L. R. 10 C. P. 29; 31 L. T. 881.

The 30 & 31 Vict. c. 142, s. 5, gives to the court or a judge at chambers a power to review the decision of the judge at nisi prius; and, as the court takes into consideration all the circumstances of a case, the facts that the plaintiff could not sue but in a superior court, that he has recovered 107. damages, that he has been put to unusual trouble and expense in bringing the action (although each, if it stood alone, might secure the plaintiff's costs), may, subject to such consideration, even when taken together, fail to entitle the plaintiff to costs. Kent v. Lewis, 21 W. R. 413.

The discretion of the court or a judge as to allowing or withholding costs, under 15 & 16 Vict. c. 54, s. 4, is to be exercised with reference to the propriety of bringing the action in the superior court at the time it is brought, and not with reference to the complications which may be introduced by the acuteness of a special pleader. Howlett v. Tarte, 11 C. B. (N.S.) 634.

In dealing with the County Courts Amendment Act, 30 & 31 Vict. c. 142, s. 5, the question is not simply whether the action should have been brought in the superior court; but the judge is justified in declining to certify for costs, if he is reasonably satisfied that the action should not have been brought at all. Strachey v. Osborne (Lord), 44 L. J., C. P. 6; L. R. 10 C. P. 92; 31 L. T. 374; 23 W. R. 75.

Action of trover and detinue for a portmanteau. During the trial the defendant's counsel suggested that the portmanteau, with its contents (value 251.), was in court, and that the plaintiff might have it there and then. The contents being found all right, the plaintiff accepted the offer and took it. A verdict was returned for 408., and the judge at the moment refused to certify for costs on the ground that the whole litigation had arisen out of a demand of 18. 6d., which it was conceded the defendant had no right to make. The plaintiff's counsel asked to have the verdict returned for the value of the portmanteau as well as 408. damages, but it was too late, as some of the jury had left the court :-Held, that the plaintiff was deprived of costs by 13 & 14 Vict. c. 61, s. 11, and that it was not a case in which the court could say, under 15 & 16 Vict. c. 54, s. 4, that there was sufficient reason for bringing the

VOL. IV.

action in a superior court. Dimsdale v. L. B. & S. C. Ry., 8 L. T. 453; 11 W. R. 729.

Where the plaintiff's affidavits disclosed some evidence that the defendant did not dwell or carry on his business within the jurisdiction of the county court within which the cause of action arose, and it appeared that after diligent inquiries the plaintiff was unable to ascertain the residence of the defendant, and his attorney refusing to give any information :-Held, that there was sufficient ground for an order that the plaintiff should recover his costs. Springbett v. King, 1 H. & N. 662; 26 L. J., Ex. 169.

Application, how made.]-An application to a judge by a plaintiff for costs need not be supported by affidavit, unless the facts are controverted by the defendant. Power v. Jones, 6 Ex. 121; 15 Jur. 66.

The 13 & 14 Vict. c. 61, s. 13, throws upon the plaintiff the onus of showing that he is entitled to costs in the cases mentioned in s. 11. Latham v. Spedding, 2 L. M. & P. 378; 20 L. J., Q. B. 302; 17 Q. B. 400; 15 Jur. 576.

On an application for costs it is sufficient for the plaintiff to establish a primâ facie case, so as to call on the defendant for an answer. Springbett v. King, 1 H. & N. 662; 26 L. J., Ex. 169.

Statement in Case whether an Agreement not to apply.]- The plaintiff brought an action against G. for a misrepresentation made by him in his character of manager of a banking company, and joined as a defendant J., as the public officer of the company. At the trial a verdict was directed against both, with leave to move to enter the verdict for J. The rule was obtained accordingly, but the Court of Queen's Bench held both liable. A case was then stated on appeal in which the question for the court was, whether the defendant J., as public officer, was entitled to have the verdict entered for him. "If the court shall be of opinion in the affirmative, then the verdict is to be entered for the defendant, with costs of defence." The Exchequer Chamber (overruling the judgment of the Queen's Bench) directed the verdict to be entered for J. The plaintiff then applied to the judge who tried the cause, and he certified, under 3 & 4 Will. 4, c. 42, s. 32, that the plaintiff had reasonable ground for making J. a defendant:-Held, that the statement in the case was a mere conclusion of law, and could not be taken as an agreement by the plaintiff not to apply for a certificate. Swift v. Jewsbury, L. R. 9 Q. B. 560.

Discretion as to Scale.]-Ord. LXV. r. 1, has given a judge complete discretion, not only as to the incidence, but also as to the quantum, of the costs of an action in the superior court. Consequently, the costs of suit, which a judge at chambers may, by rule or order, allow a plaintiff, under s. 5 of the County Courts Act, 1867, are not confined to superior court costs, but may be costs on the county court scale. Neares v. Spooner, 58 L. T. 164; 36 W. R. 257—C. A.

An action of contract was referred by consent, the costs to abide the event of the award, and judgment on the award to be entered in the high court. The arbitrator found for the plaintiff for a sum less than 501. and judgment was entered accordingly :-Held, that a judge at chambers had jurisdiction under Ord. LXV. r. 12, to order the plaintiff's costs to be taxed on the high court scale. Hyde v. Beardsley, 56 L. J., Q. B.

27

81 18 Q. B. D. 244; 57 L. T. 802; 35 W. R. | 59 L. J., Q. B. 44; 24 Q. B. D. 48; 61 L. T. 434; 140. 38 W. R. 108; 54 J. P. 119.

If a plaintiff applies for costs to a judge at

apply to the court as having an independent jurisdiction to grant costs, but must come by way of appeal from the judge's decision. Warman v. Halahan, 30 L. J., Q. B. 48; 6 Jur. (N.S.) 1301; 3 L. T. 379; 8 W. R. 108. S. P., Pryce v. Griffiths, 9 L. T. 418; Meredith v. Gittens, 18 Q. B. 257; 21 L. J., Q. B. 273; 15 Jur. 564.

Contract-Over £20 and less than £50 re-chambers, and is refused, he cannot afterwards covered Taxation County Court Scale.] Where an action on contract, which could have been commenced in the county court, is brought in the high court, and 201. and upwards, but less than 50%., has been recovered, costs, in the absence of special directions, are taxed on the county court scale, without regard to whether the work charged for has or has not been done. Cook v. Crews, 10 R. 345.

An order was made by a judge, under 19 & 20 Vict. c. 108, s. 26, directing an action to be tried in a county court. The order was silent as to the scale of costs. A verdict having been found for the defendant, the master allowed him only county court costs, so far as regarded the trial in the county court :-Held, that the taxation was right. Wheatcroft v. Foster, El. Bl. & El. 737 ; 27 L. J., Q. B. 277; 4 Jur. (N.S.) 896; 6 W. R.

651.

Order for New Trial-Costs of First Trial "to abide the Result."]-Where an order for a new trial provides that the costs of the first trial shall abide the result of the second, a plaintiff who obtains a verdict and judgment on the second trial, but is deprived of his costs by the refusal of the judge to certify under s. 116 of the County Courts Act, 1888, will not be entitled to any costs of the first trial. Brotherton v. Metropolitan District Joint Committee, [1894] 1 Q. B. 666; 9 R. 154; 70 L. T. 218; 42 W. R. 273-C. A.

Binding Character of Certificate.]—When a superior court of record has jurisdiction to make upon motion an order or a certificate for costs, such order is binding and conclusive, and the master's taxation for such costs cannot be impugned except by a suggestion of error in fact upon the record that no order or certificate was made by the court. Scott v. Bennett, L. R. 5 H. L. 234; 20 W. R. 686.

Form of Certificate.]-In an action of debt the writ of summons was indorsed for 501. 3s., which was reduced upon the trial, by a set-off, to 157., and a verdict was entered for the plaintiff for the latter amount, the judge certifying under the County Courts Act, 1867, s. 5, that there was sufficient reason for bringing the action in the superior court. He did not certify on the postea that the "cause was proper to be tried before him ":-Held, that in the absence of the latter certificate, the plaintiff's costs were to be taxed under the 7th direction to the masters, H. T. 1853, upon the lower scale, the case not being one in which, "by reason of the nature of the action," no writ of trial could be issued. Smith v. Hailey, 42 L. J., Ex. 5; L. R. 8 Ex. 16; 27 L. T. 426; 21 W. R. 76.

Appeal from Discretion.]-Sect. 116 of the County Courts Act, 1888, gives the court or a judge a discretion to allow costs on the high court scale in actions brought in the high court and founded on contract, in which the plaintiff has recovered a sum of 201. or upwards, but less than 501.; so that by virtue of s. 49 of the Judicature Act, 1873, no appeal lies from an order allowing such costs. Bazett v. Morgan,

When an action is brought to try a right, and the right is of sufficient importance to make the action one proper to be brought in a superior court, the court will make an order for costs in favour of the successful plaintiff, although the judge at the trial has refused to certify. Hinde v. Sheppard, 41 L. J., Ex. 25; L. R. 7 Ex. 21; 25 L. T. 500; 20 W. R. 99.

A plaintiff brought an action to assert rights of trifling value and recovered 408. damages; the judge at the trial refused to certify for costs: -Held, that this was not a case in which the court would grant a rule to allow the plaintiff his costs. Barlow v. Briggs, 27 L. T. 159; 20 W. R. 866.

The court required a strong case to be made out before it would overrule the exercise of a judge's discretion under the 15 & 16 Vict. c. 54, s. 4. Dunston v. Paterson, 5 C. B. (N.S.) 267 ; 28 L. J., C. P. 97; 4 Jur. (N.S.) 1024; 6 W. R. 768. S. P., Courtenay v. Wagstaff, 16 C. B. (N.S.) 110 ; 9 L. T. 689; 12 W. R. 431.

When the judge, although a substantial claim of right was put in issue by the pleadings and contested at the trial, refused to certify for costs under s. 5 of 30 & 31 Vict. c. 142, because he thought that the action was not bona fide brought to try the right, but merely to gratify an angry feeling against the defendant, the court declined to interfere, not being satisfied that the judge's discretion had been wrongly exercised. Strachey v. Osborne (Lord), 44 L. J., C. P. 6; L. R. 10 Č. P. 92; 31 L. T. 374; 23

W. R. 75.

J. SET-OFF OF COSTS.

1. WHEN ALLOWED.

In Same Action.]-Under Ord. VI. r. 19, of the Rules of the Supreme Court, 1875 (Costs)—by which, whenever, in cases specified, à party entitled to receive costs is liable to pay costs to the other party, the taxing-officer may adjust the costs by way of deduction or set-off-such set-off

or deduction is limited to costs due to either

party in respect of the same action, and cannot be enforced in respect of the costs of any separate proceeding between the same parties. Barkery. Hemming, 5 Q. B. D. 609; 43 L. T. 678—C. A. Affirming, 49 L. J., Q. B. 730; 28 W. R. 764.

It is a common practice of the court to award to each party a portion of the costs of a cause at the final hearing; and the court has jurisdiction to direct a set-off of costs awarded by the court itself as between two parties. Magrath v. Magrath, Ir. R. 10 Eq. 155.

Sums of costs incurred in the same suit or proceedings, though payable under different orders, may be set-off against each other; and this right of the parties is not affected by the solicitor's lien. So held, where the defendant, after becoming liable under orders in the suit, to pay costs to

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