among those the offence of forgery, so that in Ontario or Quebec, as well as in England, the offence of forgery would not come under the Speedy Trials Act, and could not be tried by a judge without a jury. But here the statute says that a judge under said Acts can try all offences which can be tried by the Court of Queen's Bench. Can it mean that a judge can try summarily a prisoner I do not think that such was Then, if under such statute a

charged with murder or treason? the intention of the legislature. judge should not assume to try summarily a man for murder or treason, for what offence shall he assume to hold a summary trial? Where is the line to be drawn? I am of opinion, therefore, that the only correct and the safest way to interpret that Act is to hold that the jurisdiction conferred on the judges of this Province in regard to summary trials is the same as that held by the judges of Ontario and Quebec in the Speedy Trials Act of 1869 (32 & 33 Vic. c. 35), i.e., the jurisdiction of the Court of General Sessions of the Peace in England, under 5 & 6 Vic. c. 38, and forgery being one of the excepted offences, I think the prisoner in this case should not be brought up under the Speedy Trials Act.

COCHRANE MANUFACTURING CO. v. HARMER. (IN CHAMBERS.)

Costs.-County Court Scale.-Defendant abroad.

Where upon the face of the record the action appears to be one within the competence of the County Court, the plaintiff is not, merely because the defendant resided without the Province, entitled to Queen's Bench costs. Such absence may be ground for obtaining a judge's certificate for Queen's Bench costs, but without such certificate only County Court costs can be taxed.

J. W. E. Darby for plaintiff.

P. McCarthy for defendant.

[12th April, 1886.]

KILLAM, J.-This is an application to review the taxation of costs upon a verdict for plaintiff for $37.70.

The declaration contained—(1) a count upon a promissory note made by defendant in favor of plaintiff for $41.75; (2) the common counts; and (3) a count in special assumpsit for the price of a binder sold by plaintiff to defendant at $290, to be paid in cash or by certain notes, averring delivery of the binder and failure to pay either in notes or cash. The amount claimed in the declaration was $500. The pleas were, to 1st count,—(1) non fecit; (2) payment; (3) plaintiff not lawful holder of note; (4) fraud in procuring note; to common counts, never indebted ; to special count,-(1) denial of sale and delivery of machine, (2) counter-claim upon a breach of warranty in respect of the machine, claiming $500 damages, (3) counter-claim upon breach of another warranty, claiming also $500 damages; to whole declaration, payment.

The action was tried before me at the Brandon Assizes of last fall, when the plaintiff failed upon the promissory note and the special count for want of witnesses to prove signatures of defendant, and the verdict was entered only upon the common counts for twine supplied by plaintiff to defendant. No certificate for Q. B. costs was granted or asked for at the trial. The master taxed to the plaintiff costs upon the inferior scale of costs according to the tariff of this court, and refused to allow the defendant to set-off costs. The plaintiff's bill was taxed in the absence of the defendant's attorney. The plaintiff's attorney appears to have been willing to open up the taxation in order to enable the defendant to tax the costs of issues on which the plaintiff failed, but not to allow the plaintiff's bill to be taxed on the County Court scale, to which the defendant's attorney would not consent, he insisting on his right to set-off the difference between Queen's Bench and County Court costs, and to a taxation of the plaintiff's bill on the County Court scale. The taxing master refused to tax the defendant's bill, holding that he could not do so when he had taxed and allowed the plaintiff's bill, according to the tariff of this court, and it appears that in this view the defendant's attorney agreed with the master.

The defendant applies upon an affidavit which, in addition to showing the nature of the action, the verdict and the principle adopted on taxation, states that "the cause of action for which the verdict was given was within the jurisdiction of the county court."

In reply it is claimed that the action was not one of the proper competence of the county court, because, as is shown, the defendant when the writ issued was resident in the United States, and was there served with the writ, and has never since the issue of the writ been in Manitoba, and because the pleas of counter-claim were not in respect of causes of action within the jurisdiction of the county court. The question arises under section 133 of the Administration of Justice Act, 1885, 48 Vic. c. 17, under which, "In case an action of the proper competence of the county court be brought in the Court of Queen's Bench, the costs shall be taxed in the manner following:"(1) In case the judge who presides at the trial of the cause certifies in open court * that it is a fit cause to be withdrawn from the county court and brought in the Queen's Bench, the plaintiff shall recover his costs of action, according to the practice of the Queen's Bench," &c.

* *

"(3) In case the judge who presided at the trial shall not certify as aforesaid, the plaintiff shall recover only county court costs, and the defendant shall be entitled to tax his costs of the action as between attorney and client; and so much thereof as exceeds the taxable costs of defence which would have been incurred in the county court (if any) shall, on entering judgment, be set-off and allowed by the taxing officer against the plaintiff's county court costs to be taxed, and the amount of the verdict if it be necessary."

It does not appear what was the material before the taxing master when he taxed the plaintiff's bill, but, as the defendant should have shown this, it must be presumed that there was before him, as there should have been to enable him to tax costs of the writ, affidavit of service and expenses of service, evidence of the nature of the writ and place of service. This would have shown the defendant to be, at the time of the issue and service of the writ, resident without Manitoba.

Is this sufficient to show that the action was not of the proper competence of the county court?

I think that the matter must be treated as if the claim on which the plaintiff succeeded was the sole cause of action in question; the amount of costs recoverable should not be increased by the addition of claims upon causes of action on which the plaintiff had no right to recover. It is shown on affidavit that by accident a witness, who could have proved the other causes of action, did not arrive in time for the trial; but this cannot be taken into account, however unfortunate it may be for the plaintiff that it so happened; the other causes of action were not proved and must, for the purposes of this application, be regarded as not existing.

c. 34,

As to the amount and the nature of the claim on which the plaintiff has recovered, it is within the competence of the county court. By section 42 of the County Courts Act, Con. Stat. Man. "Any suit may be entered and tried in the court holden in the judicial division in which the cause of action arose, or in which the defendant, or one of several defendants, resides or carries on business at the time the action is brought." There is the positive statement on affidavit that the cause of action was within the jurisdiction of the county court. While it is clearly shown that the defendant did not, when the action was brought, reside in any judicial division in the Province, and even though it should be assumed that he did not then carry on any business in any such division, it is not denied that the cause of action arose within a judicial division of the Province. In this respect, also, the cause of action must, therefore, be considered to have been within the competence of the county court.

The principal argument upon which the plaintiff relies is that a writ of summons issued from a county court could not be served out of the Province, and that, therefore, the action could not have been brought in a county court. Whether the former proposition be correct or not, I do not think that its determination is decisive of the main question. Even though the defendant in a county court action cannot be served out of the Province, and is resident out of the Province, it does not follow that an action cannot be brought against him in a county court upon a cause of action arising within the judicial division

for which that court is constituted, for the defendant might afterwards come within the Province and be then served, or he might put in a dispute note and go to trial without service. Mere absence of a defendant from the Province does not necessarily involve the conclusion that the action is not within the competence of the county court. Upon proof that the defendant was at the commencement of the action absent from the Province and was not likely to return thereto within a reasonable time, a judge might well, if he should be of opinion that a county court writ could not be served out of the Province, certify that the cause was a fit one " to be withdrawn from the county court and brought in the Queen's Bench "; but if the nature of the cause of action and the amount involved and the place where the cause of action arose be such as to give a county court jurisdiction, it must, in my opinion, be said that the action is" within the competence" of that court, and the natural consequences as to costs must follow.

Nor can I regard it as important that the defendant has seen fit to set up as defences counter-claims for amounts which he could not have recovered in a county court. In my opinion, this would in no case make any difference, but it is sufficient in this instance to point out that these counter-claims are set up as defences only to a count of the declaration on which the plaintiff has failed.

I regret to be obliged to come to this conclusion, as I have no doubt that the plaintiff was entitled to recover a much larger sum of the defendant; I had no doubt of this upon the trial, but as the plaintiff failed to offer legal evidence of the right, I was powerless to enter any other verdict than was then entered, and I am equally powerless now to relieve the plaintiff of the consequences imposed by law.

The matter must be referred back to the master to review the taxation, and to tax to the plaintiff the costs of the cause according to the tariff of the county courts, omitting costs of the issues on which the defendant succeeded, and to tax to the defendant all the defendant's costs of the action according to the superior scale of costs of this court as between attorney and client, and to set-off against the plaintiff's costs (and verdict, if necessary) so much of the defendant's costs thus taxed as exceeds what