He cited Chitty's Stat., vol. 6, p. 385; Raymond v. Lakeman, 34 Beav. 584; Galloway v. Corporation of London, L. R. 4 Eq. 90; Thames Haven Railway Co. v. Hall, 5 M. & G. 274.

[11th September, 1885.]

TAYLOR, J.-The summons for a revision of taxation in this case must be made absolute. The Ontario cases of Jarviz v. The Great Western Railway Co., 8 U. C. C. P. 280; and Stevenson v. The Corporation of Kingston, 31 U. C. C. P. 333, cannot be regarded as authorities. The Imperial Statute 33 & 34 Vic. c. 28, is not in force in that Province. It is in force here, having been passed upon the 14th of July, 1870.

The plaintiff seems to me to have placed himself in a dilemma. He files an affidavit, in which he swears that the attorney for the defendants is a salaried officer of the company, and on that account contends that he is not entitled to tax against and recover from the plaintiff any costs. He also says it is not shown that the attorney's retainer is under the seal of the company; and he contends that, it not being under seal, they are not liable to him for costs, and so none can be taxed against the plaintiff. It must either be under seal or not. If under seal, then the agreement is a binding one, but the case is governed by the statute 33 & 34 Vic. c. 28. If not under seal it is not binding, so there is no agreement and the attorney is entitled to his costs in the usual way, and can tax them against the plaintiff.

The Thames Haven Railway Co. v. Hall, 5 M. & G. 274, establishes that unless something is disclosed to show that the retainer is not under seal, the Court will assume that it is so.

The summons is made absolute; but as I understand the attention of the prothonotary was not called to the statute until after he had disposed of the matter, it will be without costs.

THE CANADIAN PACIFIC RAILWAY CO. v. FORSYTH. (IN CHAMBERS.)

Interpleader.-Barring claimant in default of security for costs.

The defendant in an interpleader issue was ordered to give security for costs. After long delay an order was made that he do give security within a limited time or that his claim be barred.

An interpleader issue having been directed, an order was made on the 12th of June that Forsyth, the defendant in the issue, should give security for costs, but no time was thereby limited within which he should do so. No security having been. given a summons was taken out to limit the time for giving security and to bar the claimant in case of default.

W. E. Perdue, for Forsyth, showed cause. There is no practice to warrant the making of such order as is asked. Sec. 132 of the Administration of Justice Act, 1885, applies only to the case of a plaintiff liable to give security to a defendant, and not to such a case as the present. It is only under the authority of that section that the Court can make an order limiting the time for giving security.

P. McCarthy, contra. An order such as is now asked may be made wholly irrespectivive of the Administration of Justice Act. He cited Melin v. Dumont, 20 L. T. N. S. 366; Williams v. Crosling, 3 C. B. 957. Tassie v. Kennedy, 5 D. & L. 587.

[4th September, 1885.]

TAYLOR, J.-The cases cited by Mr. McCarthy furnish direct authority for making such an order as is now asked. Looking at the length of time which the defendant has already had and the date at which the next assizes will probably be held, the time may be limited to three weeks.

ONTARIO BANK v. GAGNON.

(IN CHAMBERS.)

Renewal of fi. fa.-Construction of section 103 Administration of Justice Act, 1885.

Held. Section 103 of the Administration of Justice Act, 1885, is not retrospective. Writs issued prior to that Act must be renewed within one year.

A writ of fieri facias against the lands of the defendant was issued on the 23rd day of May, 1884, directed to the Sheriff of the Eastern Judicial District, and was not renewed within a year from its date, as provided by 44 Vic. c. 11, s. 60, sub-sec. (a), and was unexecuted.

On a motion by the defendant to have the same withdrawn from the sheriff's hands,

J. W. E. Darby showed cause, and contended that the Act of 1885 was retrospective in its operation and applied to this writ so as to make it extend for two years from its date without renewal. The rule against the retrospective construction of statutes applied to vested rights and causes of action only, but not to procedure.

J. H. D. Munson contra. The section of the Act of 1885 is intended to apply to writs issued since the passing of the Act only, and is not retrospective.-Miller v. Beaver Mutual Insurance Co., 14 U. C. C. P. 399:

[18th September, 1885.]

DUBUC, J., after consideration, ordered the withdrawal of the writ from the sheriff's hands, being of the opinion that the Act was not retrospective in its operation. He intimated that he had consulted the other judges of the court before arriving at his decision, and that they concurred in this view.

MCANNEARY v. FLANAGAN.

(IN CHAMBERS.)

Costs upon judgment for portion of claim admitted to be due.

A plaintiff being entitled to an order to sign judgment for a portion of his claim (under section 36 of the Q. B. Act) is entitled to the costs down to that period.

The plaintiff brought his action to recover $1,100 alleged to be due under a contract of hiring. After the defendant entered an appearance, the plaintiff obtained a summons under section 34 of the Queen's Bench Act, 1885, calling on the defendant to show cause why he should not be at liberty to sign final judgment for the amount claimed. On the return of the summons the defendant obtained an order for the cross-examination of the plaintiff on his affidavit, and proceeded to examine him. After several enlargements of the summons, he admitted an indebtedness to the extent of $700, but disputed his liability for the balance of the claim. The plaintiff being thus entitled to an order under section 36 to have judgment for the amount admitted to be due, and allowing the defendant to defend for the residue of the claim, the question arose as to what disposition should be made of the costs.

Ghent Davis, for the plaintiff, asked an order allowing the plaintiff to sign judgment for the amount admitted to be due, and for the costs up to that stage.

C. H. Allan, for the defendant, urged that the question of costs should be reserved until after the contest as to the balance claimed should be prosecuted to a close, or abandoned.

[12th September, 1885.]

TAYLOR, J.-Supposing the statute under which the present application is made did not exist, and the action had, according to the old practice, to proceed to trial, the plaintiff, even if he got a verdict for only $700, and not for the whole amount claimed, would be entitled to the full costs of suit. If the defendant pleaded payment into court of $700, and defended for the residue; then if the plaintiff replied that the sum paid in was not sufficient, and going on to trial succeeded, he would again have been entitled to the full costs of suit. If he failed at the trial, he would still have been entitled to costs up to the time at which the defendant paid the money into court, although the defendant would be entitled to recover against him the costs of the cause in respect of the defence to the residue of the claim,

In the present case the plaintiff has so far proved to be in the right. The defendant admits he is entitled to $700, part of the claim sued for, and the plaintiff should have an order to sign judgment forthwith for that amount, and for the costs up to that stage. Should he proceed further with the action to recover the residue of his claim, and succeed, he will be entitled to the additional subsequent costs, for his success will show that the defendant should have admitted as due, not merely the $700 which he now admits, but the rest of the claim also. In the event of his failing he will have to pay to the defendant the subsequent costs, for it will be shown by the result, that as to the residue he has been making an unfounded claim which the defendant was justified in resisting.

UNION BANK v. DOUGLASS.
(IN CHAMBERS.)

Appeal from taxation.-Certificate.

Held, There can be no appeal from taxation until a certificate has been issued This was an appeal by the defendant Hodder from the master's taxation of his costs under the decree herein. No certificate of taxation was produced, but only the bill of costs showing certain items taxed off, and having at the foot a memo : "Taxed 2nd Sept., 1885, $37.80. W. L."

George Patterson for the appeal.

E. H. Morphy, for plaintiffs, took the objection that no certificate had been made by the master, or at all events none was produced.

[30th September, 1885.]

TAYLOR, J.-Before an appeal can be taken there must be a certificate made by the master, from which the party appeals No appeal from a report will lie until the report has been signed; and even in the case of an appeal from the master's ruling in the course of a reference, before the court entertains the appeal there must be a formal certificate to inform the court of what the master's ruling was.

As Mr. Patterson seems to think that in a former case an appeal was heard on similar material to that produced here, I do not dismiss his appeal, but allow him the indulgence of producing a formal certificate.