inquiry obtained a farthing damages only, it was held that the latter was entitled to his full costs: Glynne v. Roberts, 9 Exch. 253. The case of Anderson v. Chapman, 5 M. & W. 483, shows that the declaration is not divisible. There, in assumpsit against carriers by sea, the declaration charged that the defendants had so negligently conducted themselves in and about the stowage and otherwise taking care of and carrying the goods, which were described to be 100 casks of tallow, that they were damaged and spoiled: the defendants pleaded that they did take due care of the goods, and did not negligently conduct themselves in and about the stowage of the goods or otherwise, on which issue was joined: at the trial the plaintiffs failed to prove any negligence in respect of the stowage of the tallow, but proved a damage to one cask from negligence in the loading, as to which alone they obtained damages: and it was held that the defendants were not entitled (under the 7th rule of H. 2 W. 4) to a verdict or costs on the above issue in respect of the rest of the casks. "If," says Lord Abinger, "we were at liberty to do justice in this particular case, in contravention of the general rule of law, I should be much disposed to discharge this rule; because the parties undoubtedly both went down to try the question as to the damage by improper stowage. But the plaintiffs, nevertheless, proved negligence within the terms of the declaration. Now, the effect of the plea is, that the defendants committed no negligence such as is complained of in the declaration that is the issue: but it appears by the evidence that they have: as soon as that is found, the case resolves itself merely into a question of damages, and assumes the same form as if

the defendants had not pleaded at all, but had let judgment go [*624

by default." The entire issue,-if it may be so called,-is found for the plaintiffs: nothing can be entered for the defendant. In Feize v. Thompson, 1 Taunt. 121, it was held, that, if the plaintiff has evidently sustained some damages, and the jury, being unable to ascertain the amount, find a verdict for the defendant, the court will permit the plaintiff to enter a verdict for nominal damages. [WILLES, J.The same thing was done by the Court of Queen's Bench in The Queen v. Fall, 1 Q. B. 636 (E. C. L. R. vol. 41). WILLIAMS, J.-The writ of inquiry is in effect an issue sent to inform the conscience of the court as to what damages the plaintiffs have sustained. The jury do not think fit to inform the court. Under such circumstances, the plaintiffs are entitled to nominal damages.] In The Queen v. Fall, Lord Denman says: "The entry of nominal damages in such a case as the present is quite of course, and entirely a matter of form, in which the jury could not exercise any discretion." It is clear, therefore, that, in contemplation of law, nominal damages are to be assumed to have been given.

Murray, in support of the rule.-The declaration contains three breaches, the first, for liquidated damages; the second and third for unliquidated damages: and it is sworn that the jury expressly found that no damages had been sustained in respect of the second and third breaches: and there is no affidavit in answer. It may be conceded that there are no issues here, properly so called: but, for the purpose of costs, where there are three counts or three breaches,

there are three distinct causes of action. In Reynolds v. Harris, 3 C. B. N. S. 267 (E. C. L. R. vol. 91), in slander, the declaration contained four counts: the defendant pleaded not guilty to the *625] whole declaration, and further to the second count a multifarious plea of justification setting forth three several circumstantial statements of misconduct on the part of the plaintiff, any one of which would be a sufficient answer to the count: the plaintiff took issue on the pleas; and, upon a reference of "all matters in difference in the cause," with a provision that "the costs of the cause, and also the costs of the order and of the reference and award, should abide the event of the award," and that "the arbitrator should have power to direct how the verdict in the cause should be entered," the arbitrator found, upon not guilty, for the plaintiff as to the second and fourth, and for the defendant as to the first and third counts; and, as to the second issue, he found that the plea, so far as related to one of the matters justified, was proved, and as to the rest not proved; and, being of opinion that the part proved was an answer to the second count, he assessed no damages for the plaintiff on that count, but assessed his damages on the fourth count at 40s. And it was held that the proper principle of taxation was, to allow the plaintiff no costs of any part of the plea of justification, and the defendant costs only of the part expressly found to be true, including costs of evidence applicable to such part, though also applicable to the residue of the plea, but not costs of any evidence applicable exclusively to that part of the plea which was found to be untrue. [ERLE, C. J.-Does the plaintiff lose the costs of witnesses merely because the jury do not choose to believe them?] In Cocks v. Peachey, 2 M. & Ry. 420, it was held, that, where the jury, in returning a verdict, say that they find for the plaintiff as to part of the declaration, he will not be allowed the expenses of witnesses called to support a different part, although the verdict be entered for *626] him generally. Cockburn, C. J., *in Reynolds v. Harris, 3 C. B. N. S. 291 (E. C. L. R. vol. 91), says: "Quite independent of statute and rule, a discretion ought to be, and is in practice, exercised as to the amount of costs; and useless expenditure ought to be, and is in practice, disallowed. The Master ought to look to the finding upon the issue, where there is nothing else in the proceedings to guide his discretion. But where, as here, there is matter ascer tained in the cause,-whether appearing upon the face of the proceedings or established by the statement of the judge founded upon his judicial knowledge of the facts,-whereby the Master is satisfied that witnesses called by the successful party have been wholly useless, and their evidence as completely thrown away as if they had sworn to a truism or an irrelevant fact, he ought to disallow the expenses of such evidence, as at least unnecessary." Instead of taking that view, the Master here, conceiving that the jury ought to have found nomi nal damages on the second and third breaches, assumed that they had done so. [ERLE, C. J.-The ground you rest upon, is, that the witnesses were disbelieved.] The plaintiff's got no more than they would have got without them. Mr. Gray,-Gray on Costs, 41,-treating of the divisibility of issues, says: "Before discussing this subject further, it will be well to disembarrass it of a question which has

been mixed up with it in some of the cases. That question is this: Where the plaintiff, from the issue raised not being divisible, has an entire verdict, and yet at the trial called witnesses for the purpose of proving a more extensive cause of action than he succeeded in proving, those witnesses not having spoken at all to that part of the cause of action which he did succeed in proving, is the plaintiff entitled to be allowed the expense of those witnesses, as he succeeded on the entire issue? It is very clear that he is not ;(a) but that [*627 must rest upon entirely different grounds from any question as to the costs of issues. The reason is simply that the witnesses were not material or necessary witnesses, for, without them, the plaintiff would have recovered precisely the same verdict and debt or damages which he has recovered."

ERLE, C. J.-I am of opinion that this rule must be discharged. The defendant suffered judgment by default; and, no doubt, without the plaintiffs calling any witnesses upon the inquiry, the jury would have been bound to give nominal damages; and, if they omitted to do so, the court might rectify the omission at any time. I treat the declaration as consisting of one count only, though it has been contended to be in substance three. Notwithstanding the plaintiff's would have been entitled to nominal damages without them, that does not make the witnesses immaterial. In all cases it is the Master's duty to disallow the expenses of witnesses whom, in the exercise of his discretion, he finds to be immaterial. But, whether witnesses are material or not, does not depend upon the result, but upon this, whether a prudent attorney, having a due regard for the interests of his client, would have brought them. I discharge this rule because the Master did exercise his discretion here as to whether or not the witnesses in question were material and necessary in the sense in which I use the term. I think, however, the rule should be discharged without costs. It was a fair question, and the court rather encouraged the inquiry.

[*628

WILLIAMS, J.-I am of the same opinion. I think this matter is to be looked at as if that had been done which might and ought to have been done, viz. the inquisition amended by adding a finding of nominal damages upon the second and third breaches. That being so, the Master is bound to allow all such witnesses as he conceives to be material and necessary, notwithstanding their testimony has been productive of no fruits.

WILLES, J.- I am of the same opinion. The practice of the court is the law of the court.

KEATING, J., concurred.

Rule discharged.

(a) Delisser v. Towne, 1 Q. B. 333 (E. C. L. R. vol. 41); Cocks v. Peachey, 2 M. & Ry. 420 (E. C. L. R. vol. 17).

JOLLY and Another v. REES. Feb. 1.

Where a wife is living with her husband, the presumption is, that she has his authority to bind him by her contract for articles suitable to that station which he permits her to assume: but that presumption may be rebutted by showing that she had not such authority.

In 1851, the defendant forbade his wife to incur debts for clothing for herself and two daughters, telling her he would allow her 507. a year for that purpose, in addition to 657. per annum which was settled upon her to her separate use. In 1860 and 1861, the wife contracted a debt with the plaintiffs for clothing. The plaintiffs had no notice of the revocation of the wife's authority.

In an action against the husband to recover the price of these goods, the jury found that the articles supplied were necessaries suitable to the estate and degree of the parties; that the wife's authority to pledge her husband's credit was revoked in 1851; that, if the 1157, per annum had been regularly paid to the wife, and applied by her to the clothing of herself and daughters, it would have been sufficient; that (beyond the 657.) it was not regularly paid; and that so much of it as was paid was insufficient :

Held, by Erle, C. J., Williams, J., and Willes, J., that the plaintiffs were not entitled to recover. Held by Byles, J., that they were,-for that a private arrangement between husband and wife limiting her ordinary and apparent authority, without notice to the tradesman who has supplied necessaries to the wife, is no answer to an action by the tradesman against the husband.

THIS was an action for goods sold and delivered. Plea, never indebted.

The cause was tried before Byles, J., at the Bristol *Spring

*629] Assizes, 1863. The facts which appeared in evidence were as

follows:-The plaintiffs, Messrs. Jolly, were hosiers and linendrapers at Bath. The defendant was a gentleman of small fortune residing at Killymanellugh House, about two miles and a half from the railway station at Llanelly, in Carmarthenshire. His family consisted of four sons and two daughters. He was a magistrate for the county; and his establishment was moderate. The goods in respect of which the action was brought were supplied by the plaintiff's upon the orders of Mrs. Rees during the years 1860 and 1861. They consisted of drapery and millinery goods suitable for persons in the position of Mrs. Rees and her daughters. The prices were fair and reasonable. The orders were conveyed by letter; and the goods were directed to "Llanelly,"-none being sent directly to the defendant's house.

The defence set up was, that the wife had a sufficient allowance to enable her to obtain articles of the description of those in question without pledging her husband's credit for them: and that he had expressly prohibited her doing so. This defence rested mainly upon the defendant's own evidence, which was in substance as follows:

"Before 1851, I had reason to be dissatisfied with the expenditure of my wife. In that year I had a communication with her as to her future course. She had an income of 651. of her own settled to her separate use, which I never interfered with. On that occasion I distinctly told her not to pledge my credit, and that, if she wanted any. thing necessary, if she would come to me, I would either give her the money, or give her an order on a tradesman whom I would select. After that I gave orders to the Llanelly tradesmen for goods required for the house. I afterwards furnished my wife with money for the *630] purpose of supplying what *was wanting for the children. In

1861, I gave her a check for 501. entirely for drapery for the children. I supplied her with money for what I considered necessary and proper, to the extent to which my income enabled me, and

more. I entirely supplied my sons. I supplied my wife with money at the rate of 50l. a year since 1851. I had no knowledge of the claim of Messrs. Jolly till I received a letter from them in 1862. I had not known of the goods being supplied by them. The goods were not sent to Llanelly with my knowledge: parcels directed to me are always directed to my house. I never had a bill of particulars at all. I never saw invoices before my wife's death [which took place in January, 1863]. I never exercised any control over her private income."

The defendant was cross-examined at some length as to the extent of his establishment, and as to the payments he had made to his wife for the purpose of clothing herself and daughters during the years 1860, 1861, and 1862; but nothing very material was elicited.

A Mr. Jones, an attorney at Llanelly, proved that he received 651. a year for Mrs. Rees, and paid it into her own hands, or to her order. It was conceded that the plaintiff's had received no notice of the defendant's prohibition to his wife to pledge his credit.

In answer to questions, put to them by the learned judge, the jury found,-1. That the articles supplied were necessaries in the sense of suitable to the estate and degree of the defendant's wife and daughters,-2. That the wife's authority was revoked by her husband in 1851,-3. That, if the sum of 1157. a year had been regularly paid to the wife, and applied by her to the clothing of herself and daughters, it would have been sufficient,-4. But that 50%. a year, or 657. (her *private income), would not have been sufficient,-5. That the sum of 1157. a year was not regularly paid, and that so much of it as was paid was insufficient.

[*631

Upon these findings, the learned judge directed a verdict to be entered for the plaintiffs for 217. 8s. 4d.; but with leave to the defendant to move to enter a verdict for him, if the court should see fit,the court to draw any inferences of fact not inconsistent with the findings of the jury. And it was agreed that the parties should abide the judgment of this court.

Karslake, Q. C., in Easter Term last, obtained a rule nisi accordingly. The following cases were referred to:-Manby v. Scott, 1 Siderfin 109, Bentley v. Griffin, 5 Taunt. 356, Reid v. Teakle, 13 C. B. 627 (E. C. L. R. vol. 76), Reneaux v. Teakle, 8 Exch. 680, and Johnston v. Sumner, 3 Hurlst. & N. 261.

Montague Smith, Q. C., and Kingdon, in Trinity Term, showed cause. There is no ground for disturbing this verdict. [BYLES, J.The findings of the jury amount to this, that the goods were necessaries, that the allowance was not sufficient, and that the wife's primâ facie authority to pledge her husband's credit had been revoked.] All the authorities upon this subject will be found collected in the notes to Manby v. Scott, in 2 Smith's Leading Cases, 5th edit. 420 et seq., where the cases are divided into two classes,--1. Where the contract made by the wife was made while living with her husband,-2. Where the contract made by the wife was made while living away from her husband. "The principle," it is there said, "which governs cases ranging themselves under the former class, is, that, during cohabitation, there is a presumption arising from the very circumstances of the cohabitation, of the husband's assent to contracts made by the wife for necessaries