if taken by an attorney's clerk, would have been allowed. Ib.

Interrogatories.]—Action for work and labour. Pleas, the general issue and payment. The verdict being for the plaintiff on the first, and for The court will not include in the costs of an the defendant on the second issue, the master action the costs of the shorthand writer's notes rightly disallowed the costs of cross-examining of evidence unless there has been an agreement upon interrogatories a witness whose examina-between the parties on the subject. Mostyn v. tion in chief proved the first issue, and whose Lancaster, 51 L. J., Ch. 705. cross-examination was material only in reducing the damages on that issue, but did not affect the second issue. Gravatt v. Attwood, 1 B. C. C. 27; 21 L. J., Q. B. 215.

Copies of Correspondence.]—A cause having been made a remanet, a correspondence took place between the respective attorneys, with a view to a reference, which failed:-Held, that the master exercised a proper discretion in disallowing copies of this correspondence as part of the briefs, in taxing the costs of the cause. Pilgrim v. Southampton and Dorchester Railway Company, 8 C. B. 25.

Evidence to meet Right denied on Pleadings.] -In trover for goods seized under a claim of toll, alleged to be due by reason of landing them at a particular wharf, it is open to a defendant to set up his claim to the toll under the plea of not possessed, and the plaintiff ought, therefore, to be prepared with evidence against the claim; and he will be allowed the costs of such evidence, though, at the trial, the defendant does not raise the question. Webb v. Tripp, 1 D., N. S. 589; 6 Jur. 237.

Judgment as in case of a non-suit having been signed in an action for a malicious prosecution, the master allowed three copies of the shorthand writer's notes of the evidence on the trial of the prosecution, considering himself bound by the certificate of counsel that they were necessary: -Held, that the master was wrong in considering himself bound by the certificate, and was directed to review his taxation, in order that he might exercise his discretion as to the propriety of the allowance. May v. Tarn, 12 M. & W. 730; 1 D. & L. 997; 13 L. J., Ex. 234; 8 Jur. 383.

Shorthand notes are not allowed as between party and party. Beaufort (Duke) v. Ashburnham (Lord), 13 C. B., N. S. 598; 32 L. J., C. P. 97; 9 Jur., N. S. 822; 7 L. T. 710; 11 W. R. 267.

Of Evidence at Trial on Rule for New Trial.]-It is competent for the court to make an order for the allowance, on taxation between party and party, of the expense of the shorthand notes of the evidence given at the trial, as part of the costs of a rule for a new trial on the ground that the verdict was against the weight of evidence, in a case where, from the nature and extent of the evidence, it is manifest that the matter could not have been properly disposed of without their aid. Watson v. Great Western Railway Company, 6 Q. B. D. 163; 50 L. J., Q. B. 302; 29 W. R. 427.

Searches for Evidence.]-On the trial of a replevin, in which the defendants made cognizance as collectors of crown rent, much old documentary evidence was given by them, and A defendant in an action upon a policy of they obtained a verdict; but a new trial was insurance, obtained a rule for a new trial on the granted on the ground that one of those docu-payment of the costs of and occasioned by the ments had been improperly received in evidence. A fresh notice of trial, without any alteration in the pleadings, was then given, subsequently to which the plaintiff discontinued:-Held, that the master had rightly allowed the defendants the costs of a search made by an officer of the crown in one of its offices for all the documentary evidence used, except that portion for the reception of which the new trial had been granted; and also of the briefs used at the trial. Daniel v. Wilkin, 8 Ex. 156; 22 L. J., Ex. 73.

In an action involving the title to a manor, an antiquarian's charges for researches for and translations of ancient records and documents at the Record Office and elsewhere (which were known to exist), were allowed. Beaufort (Duke) v. Ashburnham (Lord), 13 C. B., N. S. 598; 32 L. J., C. P. 97; 9 Jur., N. S. 822; 7 L. T. 710; 11 W. R. 267.

Shorthand Notes.]-Shorthand writers' notes cannot ordinarily and without consent be allowed. Croomes or Croombes v. Gore, 1 H. & N. 14; 25 L. J., Ex. 267; 2 Jur., N. S. 427.

At an arbitration, which lasted several days, the successful party had only one counsel, and employed a shorthand writer to take down the evidence, and after each meeting a transcript of his notes was made, and a copy furnished to counsel for his guidance at the subsequent meetings-Held, that the expense of the shorthand writer, the transcripts, and the copies ought not to be allowed, although the expense of a second counsel, or of a copy of the notes of the evidence,

VOL. II.

former trial. The master allowed only one copy of the shorthand notes of the evidence, though he allowed three counsel:-Held, a proper exercise of discretion. Stewart v. Steele, 5 Scott, N. R. 517; 4 M. &. G. 669.

Of Judgment.]-The court allowed the costs of copies of the transcript of the shorthand writer's notes of the judgment below, furnished to the defendants' two original counsel. Wegmann v. Corcoran, 41 L. T. 792.

Notes of the Proceedings.]-The court declined to give the successful plaintiff the costs of the shorthand writer's notes of the proceedings which had been taken by each side, as the court had not required them to be produced for its own use. Thorley's Cattle Food Company v. Massam,

41 L. T. 543.

Of Appeal.]-See APPEAL.

B. Effect of Notice to Admit, &c., Documents.

Costs where no Notice given.]-A party to a cause, proposing to adduce in evidence at the trial any written or printed document, ought to serve a notice to inspect and admit the same, although the document is not in his possession, or even in a place inaccessible to him; and in the event of his neglecting to do so, he will not be allowed the costs of proving it. Rutter v. Chapman, 8 M. & W. 388; 1 D., N. S. 118; 5 Jur. 610.

Y Y

A party proposing to adduce documentary evi- | back exorbitant and unequal charges made upon dence at a trial is bound, in every case, to give a him for the conveyance of goods on their line, a notice to admit, even although the genuineness verdict being found against the company, the of the document is put in issue by the pleadings. master, on taxation, disallowed a charge of Spencer v. Barough, 9 M. & W. 425; 6 Jur. 154.5667. 178. 4d. for a voluminous notice to admit, He is equally bound to serve this notice, not-setting forth descriptions of upwards of 21.000 withstanding an intimation from the opposite tickets and receipts for goods carried by the side that no such admission would be made, and that the document proposed to be adduced was a forgery. Ib.

The expenses of a witness at nisi prius to translate and explain ancient records of a public nature, and to watch and explain the records produced by the opposite party, and the expense of searching for and obtaining copies and translations of such records to be used in evidence, will be allowed on taxation between party and party, though the opposite party has not been called upon to admit them. Bastard v. Smith, 10 A. & E. 213; 2 P. & D. 453.

The costs of the attendance of an officer of the Court of Chancery, to produce affidavits filed there, for the purpose of issuing them at a trial to check the testimony of the same deponents at nisi prius, will be allowed on taxation between party and party, though the opposite party has not been called on to admit them. Ib.

Refusal to Admit.]—A party refused to admit the handwriting of a third person to a document. The judge made the usual order for the costs of proving it at the trial: the handwriting of the document was proved, but the document itself was one which was not receivable in evidence. The judge at nisi prius would not certify for the costs of proving it. Phillips v. Harris, Car. &

M. 492.

Where the counsel of the party refusing, admitted the documents, in consequence of which no proof was given, and the judge did not certify -Held, that the master was right in refusing to allow the costs of the witnesses subpoenaed to prove such documents. Freeman v. Rosher, 18 L. J., Q. B. 105; 13 Jur. 427.

The plaintiff's attorney, in possession of a probate essential to the defendant's case, having given an oral, but having refused to give a written undertaking to produce it at the trial, the defendant's attorney warned him that an exemplification of the will must be procured at a heavy expense. The probate was produced at the trial on the plaintiff's part :-Held, that the defendant, who obtained the verdict, was entitled only to the expense of an ordinary copy of the will, and of a summons to call on the plaintiff to admit it. Goldstone v. Torey, 8 Scott, 562; 6 Bing. N. C.

274.

What to be Admitted.]-A notice to admit documents called on the defendant to admit the authority by which the documents were written: -Held, that the party called on to make the admissions had a right to reject the whole, and having done so, and a verdict having been obtained by the defendant, the plaintiff, who proved these documents at the trial, had no right to the costs of such proof under the 15 & 16 Vict. c. 76, s. 117. Oxford, Worcester, and Wolverhampton Railway Company, 1 H. & N. 666.

Each admission sought is to be treated as a separate part of the notice. Ib.

Costs of Voluminous Notice.]-In an action by

company for the carrier, and moneys paid on account, and in respect of which the overcharges arose-Held, that the master had exercised a sound discretion in so doing, the notice, though apparently in strict compliance with, being vir tually in fraud of, the rule of court. Edwards v. Great Western Railway Company, 12 C. B. 419.

Costs of Production and Inspection of Documents.]-When an order is made in an action in the Chancery Division for the production of documents at the office of the producing party's solicitor, that party, if ultimately successful in the action, is not entitled, as between party and party, to his solicitor's costs of the production, nor to his own costs of inspecting the documents of the other party. Brown v. Sewell, 16 Ch. D. 517; 44 L. T. 41; 29 W. R. 295—C. A.

The costs of inspection must as a general rule be paid by the party inspecting. Republic of Peru v. Weguelin, 7 L. R., C. P. 352; 41 L. J., C. P. 144; 27 L. T. 123; 20 W. R. 745.

xi. In other Cases.

Withdrawal of Defence of one Defendant.]— Where one of two defendants to an action of ejectment withdrew his defence, and was ordered

as one of the terms on which such withdrawal
of the action "so far as they were occasioned
was permitted, to pay to the plaintiffs their costs
by the defendant's defence" down to the date
of the application to withdraw :-Held, that the
effect of the order (the terms of which followed
the language of the Common Law Procedure
Act, 1852, s. 205, and were practically identical
with that of Ord. XXIII. r. 1) was to relieve
the withdrawing defendant from the general
costs of the action, and to make him liable only
for the additional or increased costs, over and
above the general costs, occasioned by such
defendant having defended the action.
and Personal Advance Company v. McCarthy,
18 Ch. D. 362; 45 L. T. 116; 30 W. R. 481—C.
A. Affirming 44 L. T. 514.

Real

On Discontinuance of Action.]-In an action on a marine insurance policy, owing to the plaintiff's delay in complying with an order for production of papers, the defendant did not plead until a year after declaration. Meanwhile, to save expense, the defendant examined witnesses before the master, under 1 Will. 4, c. 22, s. 4. The defendant pleaded unseaworthiness, &c., and paid 251. into court on the money counts for the premium. The plaintiff took the money out of court, and joined issue on the other pleas, but afterwards discontinued:-Held. that the defendant was entitled to the costs of the witnesses examined before the master, as incurred before instructions for plea, within Reg. Gen. H. T. 1853, r. 12. Prerite v. Adelaide Fire and Marine Insurance Company, 32 L. T. 768.

Parties having Liberty to attend Proceedings. ]

a carrier against a railway company, to recover-Mere liberty to attend the proceedings under

an administration judgment does not entitle the | amination before the examiner, is unnecessary parties having the liberty to the costs of their and unusual, and the costs of such attendance attendance in chambers as a matter of course. will be disallowed in taxation. Smith v. Buller, In order to entitle such parties to such costs, the 19 L. R., Eq. 473; 45 L. J., Ch. 69; 31 L. T. order giving the liberty to attend should ex-873; 23 W. R. 332. pressly provide that they are to be entitled thereto. Day v. Batty, 21 Ch. D. 830.

Perusals-Exhibits.]-The costs of perusals of exhibits to affidavits are not allowed on taxation under the Rules of Court, August, 1875 (Costs), Ord. VI., without a special direction to the taxing-master, who by the form of order has liberty to allow a special charge for perusal and consideration of the exhibits, the amount of such charge, if any, to be in his discretion. De Rosaz, In re, Rymer v. De Rosaz, 24 Ch. D. 684; 49 L. T. 133.

Where Defendant sets up Counterclaim. See ante, col. 1315.

Solicitor attending Accountant during Examination of Books.]-An accountant having been employed, by desire of the arbitrator, to examine the accounts of one of the parties at their counting-house, by which means much time and expense were saved, and the attorney of the other party having attended these investigations at the counting-house, the master, in taxing the latter party's costs, disallowed the charges for such attendances: the court made absolute a rule for the master to review the taxation in this respect. Hawkins v. Rigby, 8 C. B., N. S. 271; 29 L. J., C. P. 228; 6 Jur., Ñ. S. 1208.

Right of Mortgagee to Copy of Mortgage after Payment.]-A mortgagee or transferee of a mortgage, though entitled to keep a fair copy of the draft deed for his own protection until the transaction is completed, has no right to keep copies of the mortgage deed or deed of transfer after he is paid off, but whatever copies he has are, as a general rule, copies paid for by the mortgagor, and to be delivered up to him when he pays off the mortgage. Wade and Thomas, In re, 17 Ch. D. 348 ; 50 L. J., Ch. 601 ; 44 L. T. 599; 29 W. R. 625.

Change of Venue-Taxation as if in former Place of Trial.]-A plaintiff opposed a change of the venue from London to Newcastle, but undertook to tax, if successful, as if tried in Northumberland. The cause was in the paper six days, and was tried on the fifth and sixth days, when the plaintiff had a verdict. On taxation, the master allowed only two days' attendance of the plaintiff's attorney and witnesses, considering that their detention would not have exceeded that space of time if the A firm of solicitors acting for a number of cause had been tried at Newcastle. He also sets of persons (five in all) interested in moneys refused to allow the estimated cost of a journey secured upon mortgage, on the mortgage being from London to Newcastle of two witnesses paid off, in their bill of costs charged the ex(residents of South Shields), who happened to ecutors of the mortgagor with the costs of five be near London at the time of the trial. He copies of the draft deed of transfer, and the further disallowed detention money to wit- taxing master having disallowed the charge nesses whose ordinary place of abode was New- for four such copies :-Held, that the taxing castle or the neighbourhood, upon the presump-master was right in allowing the costs of only tion that they would probably have been at one copy. Ib. home at the assize time :-Held, that these were matters for the master's discretion, and that he had not so plainly and obviously erred as to induce the court to interfere. Clarke v. Tyne Improvement Commissioners, 3 L. R., C. P. 230; 37 L. J., C. P. 110 ; 17 L. T. 509.

Order directing Account of what due for Proceedings to enforce Judgment.]-Where, under an order directing an account of what was due to a party in respect of costs of proceedings taken by him to enforce a judgment in the Exchequer Division, the taxing-master to whom Trial in London - Attendance of Country the bill of costs was referred disallowed the Solicitor.]-When on the trial of a cause in costs of certain abortive garnishee summonses. London, the country as well as the London On a summons to review the taxation :-Held, attorney attends, the rule that the costs of that the taxing-master was not precluded by the attendance of the country attorney will the form of order from disallowing any costs not be allowed is not inflexible, but the master that he thought proper, and that, under Rules should decide in the exercise of his discretion, of Court, 1875 (Costs), Ord. VI. r. 26, he was whether, under all the circumstances of the case, such attendance was necessary. Aitkin, 3 L. R., C. P. 320; 37 L. J., C. P. 168; 18 L. T. 363; 16 W. R. 704.

Bell v.

The master, on taxation of the defendant's costs in an action on a policy, where the questions to be tried were admitted to be extremely difficult and complicated, having declined to allow the expenses of the attendance at the trial in London, and on a motion, of the managing clerk of the defendant's attorney, who had had the entire management of the cause, the court refused to interfere. Potter v. Rankin, 4 L. R., C. P. 76; 19 L. T. 383.

bound to do so; also that the costs in question were properly disallowed. Simmons v. Storer, 14 Ch. D. 154; 49 L. J., Ch. 121; 42 L. T. 291; 28 W. R. 408.

Varying Judgment-Ord. XLIa, December, 1879.]-The plaintiff's motion for an interim injunction to restrain a nuisance committed by the defendant was ordered to stand over till the trial of the action, no order being made as to costs. At the trial the judge awarded the plaintiff damages in lieu of an injunction, and ordered the defendant to pay the plaintiff's costs of action, the order reserving liberty to apply. The judgment as passed and entered was silent as to Attendance of Solicitor and Clerk at Examina- the costs on the previous motion. The taxing tion.]-The attendance of a solicitor's clerk in officer having refused to allow the costs of the addition to the solicitor himself, on cross-ex-motion without a special order of the judge:

Held, on motion, that the court might order the costs of the motion to be paid by the defendant. Fritz v. Hobson, 14 Ch. D. 542; 49 L. J., Ch. 735; 42 L. T. 677; 28. W. R. 722.

Semble, that all orders of the court carry in gremio liberty to apply. Ib.

Offer to Settle, Costs incurred after.]-Held, also, that the plaintiff having written to the defendant giving him an opportunity of avoiding further litigation, of which the defendant had not availed himself, the costs of the present application must be paid by the defendant. Ib.

The solicitors of a defendant wrote to the plaintiff's solicitors that they were prepared to advise the defendant to settle on certain terms: -Held, that this was not such an offer as would free the defendant from liability to subsequent costs of the action, inasmuch as he might have refused to follow the advice of his solicitors. Trotter v. Maclean, 13 Ch. D. 574; 42 L. T. 118; 28 W. R. 244.

Discretion of Taxing-Officer.]—The court will not ordinarily interfere with the taxation of costs by the registrar unless his decision is shewn to have been erroneous in principle. The Neera, 5 P. D. 118; 42 L. T. 743; 28 W. R. 816. See also cases ante, col. 1369.

The court refused to entertain the question whether the master had properly disallowed costs of separate answers. Beattie v. Ebury (Lord), 43 L. J., Ch. 80; 29 L. T. 419; 22 W. R. 68.

The entry, upon the decree, of documents as read at the hearing does not, upon taxation of costs between party and party, exclude the master's discretion as to disallowing the charges for briefing them to counsel. Murphy v. Nolan, 7 Ir. R., Eq. 498.

the master upon a taxation of costs to allow interest on moneys disbursed by a solicitor for his client, is intended to apply only as between a solicitor and his own client, and does not apply to a taxation of costs to be paid as between solicitor and client out of a fund in court belonging wholly or partly to other persons than the client. Hartland v. Murrell, 16 L. R.. Eq. 285 ; 43 L. J., Ch. 94; 28 L. T. 725 ; 21 W. R. 781.

c. Scale of Taxation.

i. Since the Judicature Acts. Matter not assigned to Chancery Division.]— 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 1,000l. 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 under the will brought an action against her executors, claiming damages in consequence of her alleged wrongful sale, or compensation in consequence of her having elected to take the cottages against her husband's will, and, if neces sary, administration of the estates of herself and her husband. At the trial of the action it was declared that the plaintiff was entitled to prove against the widow's estate (which was already being administered in another action) for the value of the cottages-subsequently assessed at 3607., and for his costs in the action. In taxing the costs the master taxed them on the lower scale under Ord. VI. r. 1, on the ground that the value of "the estate or fund 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 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, Pooley v. Driver, 5 Ch. D. 458.

Costs of Taxation.]-A defendant paid within four days the amount of debt and costs indorsed upon the writ, but afterwards had the costs taxed. Upon taxation two items, amounting to less than one-sixth of the whole amount, were taxed off. An order was afterwards made by a master of the court sitting at chambers for payment of the costs of taxation by the defendant. Upon the hearing of the summons no objection on the part of the defendant was made to the pay-3. ment of the costs of taxation, on the ground of the nature of the items so charged and taxed off. The defendant having moved to rescind the order :-Held, that though there was a discretion in the court to allow or disallow the costs of taxation to the plaintiff, the court would not rescind the order on the ground that the items taxed off were such as the plaintiff's attorney must have known to be not allowable, no objection having been made before the master on that ground. Carpenter v. Calvert, 17 L. T. 578.

Interest on.]-Interest on costs runs from the date of the taxing-master's certificate. Schroder v. Clough, 46 L. J., C. P. 365; 35 L. T. 850.

The superior courts have no power to give interest on costs incurred on appeal from the Exchequer Chamber for such time as may elapse between the judgment of that court and its affirmance by the House of Lords. Lancashire and Yorkshire Railway Company v. Gidlow, 9 | L. R., Ex. 35; 43 L. J., Ex. 1; 29 L. T. 399; 22 W. R. 17.

The 33 & 34 Vict. c. 28, s. 17, which enables

Administration Action-Testator's Interest less than £1,000.]—In an administration action, where the estate consisted of personalty, and the equity of redemption in real estate and the gross value, 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.

Higher Scale-Fraud.]-The plaintiff in this action claimed relief on the ground of alleged fraudulent misrepresentations in the prospectus of a company, and upon the action being dis missed with costs the taxing master allowed costs upon the higher scale. Before trial the plaintiff took out a certificate that the lower scale of fees was applicable to the case. The amount that the plaintiff claimed to recover was 401., paid by him in respect of shares of the company; he also claimed costs and damages and an indemnity:Held, on adjourned summons to review the taxa

tion and vary the certificate of the taxing-master, | that the case did not come within the definitions of cases under Ord. VI. r. 1 of the rules of August, 1875, and that fraud being alleged, the court would exercise its discretion under r. 3 of the same order, and allow costs on the higher scale. Harrison v. Leutner, 24 Ch. D. 594; 52 L. J.. Ch. 927; 49 L. T. 91; 31 W. R. 837.

Semble, that Ord. VI. r. 3, of the Rules of the Supreme Court (Costs), allowing costs upon the "higher scale," is not limited to costs in actions brought in the Chancery Division of the High Court, but gives the Common Law Divisions a discretionary power to order costs to be taxed upon the higher scale, even though the cause of action involves no equitable clement. Ib.

Judge cannot delegate Power of allowing Costs on Higher Scale.]—A judge has no power to delegate to a master the discretionary authority given him by the Rules of the Supreme Court (Costs), Ord. VI. r. 3, with reference to allowing costs on the higher or lower scale. Corticene Floor Covering Company v. Tull, 27

Injunction — “Injury to Property" Trespass.]-In Ord. VI. r. 2 of the Rules of the Supreme Court (Costs)—which allow costs on the higher scale in actions for special injunctions to restrain the commission or continuance of waste, nuisances, breaches of covenant, injuries to property, &c.-the "injury to property" must be a substantial physical injury, and does not | W. R. 373—C. A. 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 Railway (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.

Between Solicitor and Client.]-See SOLICI TOR.

ii. Before the Judicature Acts. Where a plaintiff claims more than 207., but obtains a verdict for a sum under 207., by reason of a tender of the remainder of the amount, claimed before action, his costs must be taxed on the reduced scale. Dixon v. Walker, 7 M. & W. 214; 8 D. P. C. 87; S. P., Crosse v. Seaman, 11

When Injunction 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 asser-C. B. 524. tion 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 :-Held, that this was not such an action for an injunction as to render the higher scale applicable within the rule. Chapman v. Midland Railway Company, 5 Q. B. D. 431; 49 L. J., Q. B. 449; 42 L. T. 612; 28 W. R. 592-C. A. Affirming 5 Q. B. D. 167; 49 L. J., Q. B. 245; 28 W. R. 413.

The plaintiff, the lessee and owner of a market, brought an action to recover damages for breaches of covenant against the tenants of certain houses within the market, and claimed an injunction to restrain the defendants from further breaches. The judge before whom the action was tried, holding that the injunction was the principal relief sought, and that the action was brought to establish a right, made an order, allowing the plaintiff costs on the "higher scale." The judge who tries the action has jurisdiction to make such an order under r. 3 of Ord. VI. of the rules as to costs, and should, in the exercise of his discretion, regard the intention of the legislature, as expressed in r. 2 of the same order. Horner v. Oyler, 49 L. J., C. P. 655.

No Equitable element in Common Law Action necessary.]—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, 6 Q. B. D. 279; 50 L. J., Q. B. 384; 29 W. R. 337.

If the sum recovered does not exceed 207., the costs must be taxed according to the reduced scale, though the cause could not be tried before the sheriff, on account of the sum indorsed on the writ being more than 207. Southwell v, Bird, 7 D. P. C. 557; 1 W., W. & H. 569.

Rule 7 applies to the costs of a defendant who obtains a verdict in a cause tried before the secondary, where the sum indorsed on the writ does not exceed 207. Copley v. Hemingway, 15 C. B., N. S. 447; 33 L. J., C. P. 152; 9 Jur., Ñ. S., 1244; 9 L. T. 257; 12 W. R. 52.

In cross actions by C. against R., to recover the amount of a surgeon's bill where the writ was indorsed for more than 201., and by R. against C. for damages for negligence, the parties before trial agreed, in writing, as follows:

Taxed costs of C. to be paid in both actions; C. to be paid 157. in addition to what is paid into court (27. 78. 6d.); R. to withdraw, in writing, the letter offensive to C." A judge's order was thereupon obtained by C., and drawn up in the following terms: "I do order that upon payment of 151. beyond the amount paid into court for which this action was brought, together with costs to be taxed and paid forthwith, all further proceedings in this cause to be stayed:"-Held, that, whatever might have been the intention of the parties to the agreement, the master could only act on the judge's order, and that in the first action the plaintiff's costs against the defendant should have been taxed on the lower scale. Cream v. Ray, 30 L. J., Ex. 110.

If the amount of the plaintiff's claim is reduced by the defendant's set-off to a sum not exceeding 201., the plaintiff's costs are to be taxed on the lower scale. Tonge v. Chadwick, 5 El. & Bl. 950; 25 L. J., Q. B. 128; 2 Jur., N. S. 232.

Action to recover 287. 198. 4d, for goods sold and delivered. Pleas, except as to 267. 108. 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