joining in the petition was no objection to the order referring the bill being made by the Court. In re Hare, 16 Law J. Rep. (N.s.) Chanc. 163; 10 Beav. 187.

The clients of a town solicitor, on the delivery of his bill of costs, objected that it was not complete, inasmuch as it did not contain items in respect of business done by a country solicitor whom the clients designated as the town solicitor's agent, but whom the town solicitor claimed a right to treat as employed directly by the clients. More than a year after the delivery of the bill, the clients presented a petition to have it taxed:-Held, that the dispute as to the completeness of the bill was a special circumstance rendering it fit to direct a taxation after the lapse of a year. In re Bagshawe, 2 De Gex & S. 205.

(6) Upon special Circumstances after Payment, under 6 & 7 Vict. c. 73. s. 41.

Payment of a bill is, primâ facie, an admission of its correctness; and, after payment, special circumstances must be shewn to entitle a party to an order for taxation of the bill. The special circumstances usually relied on are, first, when pressure has been exercised by the solicitor, and immediate payment required, where delay in completing the business would be inconvenient to the party paying; and, secondly, error or overcharge in the bill. Errors or overcharges may be such as of themselves amount to evidence of fraud, in which case only very slight circumstances of pressure are necessary, if necessary at all. A petition, seeking taxation of a bill of costs, after payment, must point out and particularize items of overcharge.

A client may pay his solicitor a bill of costs, without ever having seen or had delivered to him any bill; but such a course would be bad conduct in the solicitor, and imprudent in the client. In re Harding, 16 Law J. Rep. (N.s.) Chanc. 288; 10 Beav.

250.

Taxation after payment ordered on proof of pressure and on shewing grounds for thinking that the bill would be considerably reduced. In re Sladden, 10 Beav. 488.

The fact that on the transfer of a mortgage, a mere draft of the bill of costs of the mortgagee's solicitor is for the first time produced and paid, is not without pressure or fraud a "special circumstance," to authorize taxation after payment.

The taxation of a bill at the instance of a third party "liable to pay" is regulated by the relations existing between the solicitor and his client, and not between the solicitor and the third party. In re Fyson, 9 Beav. 117. See Dunt v. Dunt, Ibid. 146.

The special circumstances under which a bill may be taxed are such as existed at the time of payment, or appear on the face of the bill itself. Where payment is extorted or there are improper charges even of small amount; or where the charges are so gross as to evince fraud and oppression, taxation will be directed after payment.

The delivery of a promissory note held under the circumstances to be payment of a bill of costs. In re Currie, 9 Beav. 602.

A mere protest against a bill of costs, and the impropriety of the items contained therein at the

time of payment, will not entitle the party making the payment to an order to tax the bill.

A mortgagor, seeking to tax the bill of costs of the mortgagee's solicitor relative to the mortgage transactions, will only be allowed to tax the bill in the same manner, and on the same principle, as the mortgagee would be allowed to tax it; and where the bill of costs of the mortgagee's solicitor was forwarded to the solicitor of the mortgagor upwards of a fortnight before the payment of it by the mortgagor, and payment being insisted on was made by the mortgagor's solicitor before the delivery up of deeds by the mortgagee's solicitor, the Court refused an order for taxation, notwithstanding the mortgagor's solicitor, at the time of payment of the bill, stated his general objection to the items contained in the bill, as being excessive and improper, and also made the payment under protest. In re Harrison, 16 Law J. Rep. (N.S.) Chanc. 170; 10 Beav. 57.

A paid bill will not be referred for taxation except under special circumstances, and a mere payment under protest will not take a case out of the general rule. In re Neate, 10 Beav. 181.

Petition to tax a bill of costs, paid without pressure nine days after its delivery, dismissed, with costs. In re Drew, 10 Beav. 368.

Taxation under special circumstances, more than twelve months after payment of a bill of costs, refused.

Quare-Whether giving a promissory note and signing a memorandum of settlement amounts to payment. In re Harper, 10 Beav. 284.

A cestui que trust agreed that her trustee, if he acted as solicitor in a suit, should receive full costs. A bill was delivered, and soon after the solicitor ceased to act. Afterwards and under other professional advice the bill was paid with some deduction. An application to tax within twelve months was refused. In re Wyche, 11 Beav. 209.

Proof of overcharge alone is insufficient to obtain taxation of a paid bill; but it is a necessary ingredient. In re Stirke, 11 Beav. 304.

Taxation refused where payment had been made under protest and no sufficient evidence given of undue pressure. In re Welchman, 11 Beav. 319.

Application by residuary legatee, more than twelve months after payment, for taxation of a solicitor's bill against the executor refused, notwithstanding some agreement between the legatee and solicitor, and that payment had afterwards been made behind the back of the legatee.

Order for taxation discharged, with costs, where the petition misrepresented the facts. In re Rees, 12 Beav. 256.

A meeting was appointed to settle important matters on August 23rd, and the costs were to be paid by H B. The bill of costs was delivered the evening before, and payment was then insisted on, though the bill was objected to. Upon evidence of overcharge, taxation was ordered after payment.

Two suits attached to the Vice Chancellor's Court were compromised. In one there was an order to dismiss on the payment of costs, and the other was stayed only. The costs of both were paid under pressure, and there were overcharges:Held, that the Master of the Rolls had jurisdiction to order taxation. In re Elmslie, 12 Beav. 538.

(7) Entering up Judgment, under 6 & 7 Vict. c. 73. s. 43.

An attorney's bill of costs was, by Judge's order, on the application of the client, and by consent, referred to taxation. The order contained no undertaking by the client to pay, nor any direction to him to pay what should be found due on taxation, and was made without prejudice to the client disputing the retainer. By agreement between the parties, the question of retainer was submitted to the Master, who decided that it was made out to his satisfaction, and made his allocatur in the usual form, "Allowed, R:"-Held, that the order, and the allocatur in pursuance thereof, authorized the Court to order judgment to be entered up, under the 6 & 7 Vict. c. 73. s. 43. for the amount, as "certified to be due and directed to be paid." In re or Ex parte Lowless, 17 Law J. Rep. (N.s.) C.P.222; 5 Dowl. & L. P.C. 793; 6 Com. B. Rep. 123. (8) Notice of Taxation.

Grant

Where in a notice of taxation the date is insensible, it will take effect from the day of delivery. v. Mackenzie, 16 Law J. Rep. (N.S.) Exch. 255; 1 Exch. Rep. 12; 5 Dowl. & L. P.C. 129.

(9) Appeal from Judge's Order for Taxation. An attorney undertook to conduct a suit for plaintiff upon the following undertaking :"Should the damages and costs not be recoverable in this action, under the circumstances, I shall charge you costs out of pocket only." The plaintiff obtained a verdict, with damages 6001., and entered up a judgment for that sum, together with 917. 4s. 6d. for costs. The defendant having afterwards petitioned the Insolvent Court, a dividend of 2727. 3s. 4}d., being more than the amount of the attorney's bill, was declared to be due to the plaintiff. The Master, in taxing the bill, allowed the attorney costs out of pocket only, but referred the matter to a Judge at chambers. The Judge directed the taxation to be as for costs out of pocket, and, on a subsequent application to him to direct a review of the taxation, dismissed the summons:-Held, first, that the second application to the Judge was not in the nature of an appeal to him, which precluded the attorney from applying to the Court; secondly, that the costs ought not to be taxed as costs out of pocket only. In re Stretton, 15 Law J. Rep. (N.S.) Exch. 16; 14 Mee. & W. 806; 3 Dowl. & L. P.C. 278.

(10) Costs of Taxation.

[Doe d. Potts v. Jinders, 5 Law J. Dig. 59; 2 Dowl. & L. P.C. 986.]

On petition to confirm the Master's report, after an order of reference to tax the respondent's bill of costs (more than one-sixth of the amount of the bill. having been struck off), and for reference back to tax the costs of taxation, the costs of and incidental to the original petition and the petition for reference back to the Master were ordered to be paid by the respondent, after deducting therefrom the costs of an action brought by the respondent previously to the date of the order directing the taxation of the respondent's bill of costs.

On petition to confirm the Master's report, after reference to tax a bill of costs, it is too late to object

that the petition to tax ought not to have been a special one. In re Hair, 17 Law J. Rep. (N.S.) Chanc. 247; 11 Beav. 96.

After action brought by a solicitor on his bill, an order was made in equity for taxation. The solicitor was found to be overpaid, but the action at law was in such a state by the mispleading of his client, that if it had proceeded a balance would have been found due to the solicitor. On an application for an order on the solicitor to refund and pay the costs of the taxation, the Court made such order, but gave no costs of the action or of the application. In re Smith, 11 Beav. 468.

Upon taxation, a solicitor put in an insufficient examination. He was ordered, on motion, to pay the costs occasioned thereby and of the four-day order and of the application. In re Bainbrigge, 11 Beav. 620.

(d) Remedies for.

(1) Against whom.

In an action by A and B, who were attornies, against surveyors of highways of a parish, for business done in procuring an order of magistrates to divert highways in the parish, and on an appeal against that order, it appeared that A and B, in their bill, charged for drawing a resolution of a parish meeting held before the order was applied for, which resolution stated that the order was to be applied for "at the instance and at the expense of the B and G Railway Co.":-Held, that A and B must be considered to have undertaken the business on those terms, unless there was an express employment of them by the defendants, and on their credit, of which there ought to be direct proof. Spurrier v. Allen, 2 Car. & K. 210.

A member of a committee, formed for the purpose of promoting an improvement bill in parliament, is not liable to the solicitor of the committee, for work done by him for the committee as such solicitor, before he became a member of the committee. Bremner v. Chamberlayne, 2 Car. & K. 560.

If the attorney of a lessor, who is not attorney for the lessee, prepare the lease, the lessor is the person liable to pay the attorney for it, and the lessor can recover over against the lessee; and this is so whether the lessee takes up the lease or refuses to do so. Baker v. Meryweather, 2 Car. & K. 737.

(2) By Action.

Plaintiff sued defendant on a bill of costs, in which there were certain items amounting to 31. 3s. 6d., for business done in endeavouring to procure money to pay off a mortgage. The first of these items was in October 1837, and the last on the 20th of January 1838; and it appeared on the face of the bill that applications were made and negotiations entered into with more than one person, with a view to raise the money; and that on the failure of any of these, the defendant was applied to for further orders. The action was commenced on the 12th of January 1844:-Held, that such business was not done in pursuance of a continuous employment of the plaintiff by the defendant, so as to take the earlier items out of the Statute of Limitations.

The defendant, in 1844, paid a bill of costs for business done by the plaintiff in bringing actions of

ejectments at the suit of B for land, which the defendant had mortgaged to B, and which bill was made out to B. Afterwards the bill was taxed, and on taxation a sum of 107. was under the Judge's order and allocatur ordered to be refunded to the defendant :-Held, that the sum of 101. could not be set off against the plaintiff's demand in the present action. Phillips v. Broadley, 16 Law J. Rep. (N.S.) Q.B. 72; 9 Q.B. Rep. 744.

An attorney admitted in one of the superior courts may (since 6 & 7 Vict. c. 73.) maintain an action for his costs in proceedings carried on in another court in which he is not admitted in the name of attornies of the latter. Hulls v. Lea, 10 Q.B. Rep. 940.

The 37th section of 6 & 7 Vict. c. 73. applies to bills for business done before as well as after the passing of the statute.

A plea which refers to the cause of action as fees, &c. "claimed and demanded" in the declaration, sufficiently confesses a cause of action. Scadding v. Eyles, 15 Law J. Rep. (N.s.) Q.B. 364; 9 Q.B. Rep. 858.

Assumpsit, first count for work, labour, care, diligence and attendance of plaintiff as attorney: second count for money paid. The plea commenced as a plea to the whole declaration, and stated that the action was for recovery of certain fees, charges, and disbursements, and for certain business done by plaintiff as an attorney, as in the first count in that behalf mentioned, and then denied a delivery to defendant of a signed bill, in the terms of 6 & 7 Vict. c. 73. s. 37. Demurrer and joinder :-Held, that the plea was pleaded to the whole declaration, and that the disbursements applied to the count for money paid.

Held also, that it is sufficient in such plea to negative the delivery of a signed bill in the terms of the statute. Tate v. Hitchins, 18 Law J. Rep. (N.S.) C.P. 256; 7 Com. B. Rep. 875.

(3) By Execution under 1 & 2 Vict. c. 110. s. 18.

A Judge's order, under 6 & 7 Vict. c. 73. s. 43, ordering judgment to be entered up for the amount found by the Master's allocatur to be due on an attorney's bill of costs, has the same force as a rule of court for the payment of money under the 1 & 2 Vict. c. 110. s. 18. No action, therefore, need be brought on such order, and if brought the costs of the writ, declaration, and appearance will not be allowed. Griffiths v. Hughes, 16 Law J. Rep. (N.S.) Exch. 176; 16 Mee. & W. 809; 4 Dowl. & L. P.C. 719.

(L) LIEN FOR COSTS.

The Court will not order an attorney to deliver up papers on which he has a lien for balance of a bill, although an offer is made to pay the amount into court, subject to the verdict of a jury.

The lien of an attorney remains although the claim is barred by the Statute of Limitations. In re Broomhead, 16 Law J. Rep. (N.s.) Q.B. 355; 5 Dowl. & L. P.C. 52.

An attorney who has done professional work for a partner in a firm on his private account, and also for the firm, has no lien upon a private deed of the partner in respect of the debt due to him from the DIGEST, 1845-1850.

firm. Turner v. Deane, 18 Law J. Rep. (N.s.) Exch. 343; 3 Exch. Rep. 836.

The lien of an attorney attaches upon money received by way of compromise; though the verdict and judgment be against his client. Upon an application to give effect to such lien, the affidavit should shew the amount claimed by the attorney. Davies dem., Lowndes ten., 3 Com. B. Rep. 823.

P, the solicitor for the plaintiff in a cause, agreed with the plaintiff not to sue him personally for the costs, but to rely on the fund sought to be recovered. P was also mortgagee of three-fourths of the fund. P having been arrested and lying in prison, an order was made upon a petition presented by the plaintiff, that P should deliver up the papers in the cause to the plaintiff's new solicitor, the new solicitor giving an undertaking to hold them, subject to the lien of P, and the new solicitor and the plaintiff undertaking to abide by any order of the Court respecting it. Scott v. Fenning, 15 Law J. Rep. (N.s.) Chanc. 88.

A solicitor has not a general lien on a fund, and it extends only to costs in the cause and costs immediately connected with costs in the cause. Lucas v. Peacock, 9 Beav. 177.

A solicitor's lien for costs extends to articles delivered to him for the purpose of being exhibited to witnesses on the trial of an action. Friswell v. King, 15 Sim. 191.

A solicitor, without notice of an incumbrance either legal or equitable prior to his possession of the title deeds of the property affected by it, has no right of lien on the deeds as against the incumbrancer.

Where a solicitor, under such circumstances, is also mortgagee of the property, with priority over another incumbrancer, the right of lien does not extend beyond his claim as mortgagee.

An existing right of lien will not be destroyed by the entering of a solicitor into partnership.

The costs of an incumbrancer unsuccessfully contesting with the solicitors of the mortgagor their right of lien on title deeds relating to the mortgaged property are to be added to the mortgaged debt.

The mortgagee of two distinct estates, each of which is subject to a prior mortgage to different mortgagees, is entitled as against the mortgagor to a decree for the redemption or foreclosure of either or both of the mortgaged estates.

Observations on the withdrawal by the plaintiff of a gratuitous offer in his bill.

Reference for an inquiry as to substantial repairs and lasting improvements will not be ordered at the hearing on further directions, merely on the statement of counsel for an incumbrancer, that such repairs, &c. have been made; unless all parties interested consent, a petition is necessary. Pelly v. Wathen, 18 Law J. Rep. (N.s.) Chanc. 281; 7 Hare, 351.

The lien of solicitors of a company on the papers of the company is not affected by the Joint-Stock Companies Winding-up Act. In re Oxford and Worcester Extension and Chester Junction Rail, Co. ex parte Potter, 18 Law J. Rep. (N.S.) Chanc. 247; 1 De Gex & S. 728.

The lien of a solicitor cannot be allowed to prevent the completion of an order which has been

I

passed by him as solicitor in the cause previous to his being discharged; and he was directed to produce the order for entry on payment of 20s. costs. Clifford v. Turrill, 2 De Gex & S. 1.

A suit was compromised between the plaintiff and the defendant by payment by the latter to the former of a certain sum. The defendant had notice of the lien of the plaintiff's solicitors for the costs of the suit. Ordered, on the petition of the solitors, that the plaintiff and the defendant, or one of them, should pay the solicitors their taxed costs of the suit and of the petition, not exceeding in the whole the sum paid by the defendant to the plaintiff on the compromise. White v. Pearce, 18 Law J. Rep. (N.S.) Chanc. 462; 7 Hare, 276.

A sale by auction announced to be "without reserve," is void if the vendor employs a puffer to bid on his behalf, without giving notice of the fact; and the purchaser may recover back his deposit from the auctioneer. Thornett v. Haines, 15 Law J. Rep. (N.s.) Exch. 230; 15 Mee. & W. 367.

An estate was put up for auction in lots. The particulars of the sale did not state, either that the sale was to be without reserve, or that the vendors intended to employ a person to bid on their behalf. A bought one of the lots at 6901. The vendors had given instructions privately to a person to bid for the lots up to certain sums, in order that the lots should not be sold under those prices; but not to bid beyond the sums fixed. This person bid 6501. for the lot, and then stopped. The biddings were by the conditions of sale to be not less than 51. There was no allegation that A was in any way misled by what the bidder had done. In a suit for specific performance by the vendors against A,-Held, that A had not, under these circumstances, a valid defence to the suit.

In this case, A, by his answer, had stated that the auctioneer had said in the auction-room" that the sale was to be without reserve." By the evidence of the person employed to bid, it appeared that the auctioneer had said, "that the sale was to be a bona fide one, and if there were any puffers in the room he should hate himself,"-Held, that this additional circumstance did not afford A a valid defence to the suit. Woodward v. Miller, 15 Law J. Rep. (N.S.) Chanc. 6; 2 Coll. C.C. 279.

(b) Conditions of [Re-sale].

Where goods are sold by auction, subject to a condition, that, if the purchase-money be not paid

on the following day, they may be re-sold, and the loss recovered from the bidder making default, and the right of re-sale is accordingly exercised, the deficiency cannot be recovered in an action for goods bargained and sold, as the effect of the reservation of the power of re-sale is to make the original sale conditional, and not absolute. Lamond v. Devalle or Davall, 16 Law J. Rep. (N.S.) Q.B. 136; 9 Q.B. Rep. 1030.

(B) AUTHORITY AND RIGHT OF AUCTIONEER. (a) Revocation of Authority.

An authority given to an auctioneer to sell may be revoked by the vendor at any time before the sale, and such revocation is valid against parties dealing without knowledge of it; therefore in a suit by a purchaser to enforce specific performance of a contract entered into by the auctioneer by mistake or inadvertence for the sale of property as to the part of which, a right of way over the land sold, his authority had been revoked, it is competent to the defendant to insist on such revocation, and parol evidence is admissible in support of that defence. Manser v. Back, 6 Hare, 443.

(b) Right to sue.

An auctioneer put in possession of fixtures for the purpose of selling them, the purchaser being bound to detach them from the freehold and remove them, is not entitled to maintain trespass de bonis asportatis, for the wrongful removal of them. Davis v. Danks, 18 Law J. Rep. (N.S.) Exch. 213; 3 Exch. Rep. 435.

[See Brittain v. Lloyd, MONEY PAID.]

AUDITA QUERELA.

An audita quereld can only be granted upon affidavit and motion in open court.

Where a writ had issued without such motion and affidavit, and the plaintiff in the action subsequently became a bankrupt, he was permitted to move to set aside the writ and proceedings without shewing any assent on the part of the official assignee. Dearie v. Ker, 18 Law J. Rep. (N.S.) Exch. 448; 4 Exch. Rep. 82.

A proceeding by audita querelá is an "action or suit," within 4 & 5 Anne, c. 16. s. 4, and a defendant may plead several pleas thereto. Giles v. Hutt, 17 Law J. Rep. (N.S.) Exch. 121; 1 Exch. Rep. 701; 5 Dowl. & L. P.C. 387.

The venire facias and summons to appear in an auditá querela must be personally served, it being original process.

Quare-Whether the venire facias is not notice to all the world. Williams v. Roberts, 19 Law J. Rep. (N.S.) Exch. 269; 1 L. M. & P. 381.

A writ of venire facias and supersedeas to the sheriff, after writ of auditá querelá obtained, is absolute in the first instance. Giles v. Hutt, 16 Law J. Rep. (N.S.) Exch. 258; 1 Exch. Rep. 59; 5 Dowl. & L. P.C. 115.

AUTREFOIS CONVICT. [See INDICTMENT, Pleading.]

Where upon a Judge's order and writ of capias the defendant gave bail to the sheriff, and on appeal against the order it appeared that the defendant had no intention of leaving England for two months, but that the plaintiff would not be able to get judgment in that time, the Court, considering the arrest premature, cancelled the bail-bond; but directed the order and capias to stand. Pegler v. Hislop, 17 Law J. Rep. (N.S.) Exch. 53; 1 Exch. Rep. 437,

(b) Action on by Sheriff's Assignees.

In an action by the assignee of a bail-bond, the declaration stated that one H had been arrested under a capias, issued by virtue of a special order made by a Judge; and that defendant had entered into the bail-bond, with a condition, reciting that the said I had been arrested by virtue of a capias issued out of the Court of Queen's Bench against the said H in an action of debt at the suit of plaintiff; and that the said bond had been duly assigned to plaintiff by the sheriff according to the statute. On demurrer to the declaration, it was held, that defendant was estopped by his execution of the bailbond from objecting that H was not arrested in an action at the suit of plaintiff.

Semble-That where in an action on a bail-bond it is alleged, that a Judge has made an order for a capias under 1 & 2 Vict. c. 110, it will be presumed that all facts necessary to give him jurisdiction existed, and were proved before him.

The writ of summons was stated in the declaration to have issued on the same day as that on which the bail-bond was assigned to the plaintiff :Held, that the declaration was good, as it did not necessarily appear that plaintiff's title accrued after action brought. Barnes v. Keane, 19 Law J. Rep. (N.S.) Q.B. 309; 15 Q.B. Rep. 75.

(B) JUSTIFYING.

Shares in a railway company in actual operation are property in respect of which bail may justify. Pierpoint v. Brewer, 15 Law J. Rep. (N.s.) Exch. 81; 15 Mee. & W. 201; 3 Dowl. & L. P.C. 487.

(C) ADDING [AFTER RECOGNIZANCE COMPLETED].

Where bail have become incompetent after recognizance completed, a party cannot be called upon to find fresh bail either in civil or criminal proceedings.

An application of this nature ought to be made at chambers. Regina v. Shirley, 12 Law, J. Rep. (N.8.) Q.B. 346.

(D) DISCHARGE of.

[Phillips v. Don, 5 Law Dig. 39; 6 Dowl. & L. P.Č. 527.]

Where an indictment had been removed by certiorari, and defendant being convicted had become liable to costs, the Court refused to discharge the recognizances of the bail to the certiorari until the costs were paid, although the recognizances made no mention of costs; but they stayed the proceedings on the recognizances with respect to the defendant propter paupertatem. Regina v. Thornton, 19 Law J. Rep. (N.S.) M.C. 113; 4 Exch. Rep. 820; 1 L. M. & P. 192.

(E) TAKING MONEY DEPOSITED IN LIEU OF, OUT OF COURT.

A defendant arrested by a Judge's order deposited a sum of money in lieu of bail, and then applied to the Court for a return of the deposit. The Court thought that, but for the matters disclosed on the affidavits on shewing cause, the defendant would have been entitled to a return; but the affidavits having raised a question whether the defendant had not since his arrest broken up his establishment and gone abroad, on which point the defendant had had no opportunity of being heard, the Court referred that question to the Master, before deciding on the return of the deposit. Graham v. Sandrinelli and Talbot v. Bulkeley, 16 Law J. Rep. (N.s.) Exch. 67; 16 Mee. & W. 191, 193; 4 Dowl. & L. P.C. 317.

The Court will not order the sum paid into court in lieu of special bail to be paid out to defendant on perfecting special bail, unless that is done before issue joined; stat. 1 & 2 Vict. c. 110, making no alteration in the practice in this respect. Welshman v. Sturgess, 18 Law J. Rep. (N.S.) Q.B. 168; 13 Q.B. Rep. 556; 6 Dowl. & L. P.C. 739.

(F) IN CRIMINAL CASES.

(a) Upon Removal of Conviction by Certiorari.

Where a certiorari has issued to bring up a conviction, under which a party is in prison, the Court will admit him to bail until the case is determined by the Court. Regina v. Lord, or Ex parte Lord 16 Law J. Rep. (N.s.) M.C. 15; 4 Dowl. & L. P.C. 405.

(b) Liability for Costs of Prosecutor.

The defendant had removed an indictment by certiorari, and had entered into the usual recognizances with two sureties. After a verdict of guilty at the assizes, he obtained a rule for a new trial, on payment of costs. Without paying the costs, he gave notice of trial for the next assizes to the prosecutor, who obtained a Judge's order, by which, if the costs were paid by a certain day, the notice of