the dividend payable in respect of it. The appeal, therefore, is allowed, with costs in the usual way. BOWEN, L.J., and KAY, L.J., concurred. Solicitors-Munns & Longden, for appellant; In re Browne and Wingrove; ex parte Ador, App. that value, and pay a dividend on that without rebate (see the words of rule 21, which is confined to debts). If by contract the debt bears interest at five per cent., then as under the rule interest is to be calculated at five per cent. for the purposes of rebate, the result will be the same as if the principal sum is treated as a present debt not bearing interest, and is proved and paid accordingly. But where the interest is more or less than five per cent., the value of the liability to pay interest and the rebate under the rule will not be equal, and will not therefore neutralise each other. Whether it was intended to alter the old law by which a debt payable at a future date, with interest, was treated as presently payable without interest we do not know; but certainly it cannot have been intended, first, to strike out the interest, and then reduce the principal by applying rule 21 to it. That, however, is what has been done by the order appealed from; but there is no warrant for so doing either under the old law or the new. The rule which prevents proof for future interest is not a positive enactment, it is rather a rule of convenience. In ordinary cases it produces no injustice. Where by rule 21 a rebate would be deducted from a future debt which by contract carries interest, the application of section 37, by allowing a proof for such future interest and setting that off against the rebate, prevents the operation of rule 21 from inflicting a loss upon the creditor by a rebate which would be unjust. If the proof for future interest should be greater than the rebate under rule 21, as when the interest contracted for was more than five per cent., possibly section 37 cannot be invoked so far as to allow proof for the amount beyond the rebate. But it is not necessary on the present occasion to decide this point. In the present case the interest payable by the contract is six per cent. The appellant is content to allow the principal sum alone to be the amount of his proof, and to waive any advantage he might obtain by valuing the bankrupt's liability to pay six per cent., and by then applying rule 21. This being so, the proof will stand for 1,000l., and there will be no rebate from that, or from 1891. ST. JOHN'S COLLEGE, CAMBRIDGE, Oct. 29. V. PIERREPONT. Practice-Costs-Action for TrespassClaim for Damages and for an Injunction - Less than 101. Damages recovered· County Courts Act, 1888 (51 & 52 Vict. c. 43), 8. 116. In an action of trespass, where the main issue to be determined was one of title to land, the plaintiffs claimed an injunction and damages. The action was tried before a Judge with a jury. The jury found a verdict for the plaintiffs with 40s. damages, The Judge gave judgment for the plaintiffs, and granted the injunction, but made no order as to costs :-Held, that the plaintiffs were not entitled to costs. Appeal from an order of Charles, J., at chambers, ordering the Taxing Master to proceed to tax certain costs. The action had been tried before Grantham, J., with a special jury, at the Lincoln Spring Assize, 1891. It was an action for trespass, in which the plaintiff's claimed the possession of a bank. The plaintiffs claimed an injunction and also damages for the alleged trespass. The only question left to the jury was whether the plaintiffs or the defendant were entitled to the ownership of this bank. The jury found that the bank belonged to the plaintiffs; whereupon the plaintiffs asked for a verdict for 408. only, which verdict was duly returned. The Judge ordered judgment to be entered for the plaintiffs for 408., and granted the injunction, but made no order as to costs. Upon this judgment the Taxing Master declined to tax, on the ground that the plaintiffs were not entitled St. John's College, Cambridge, v. Pierrepont. to any costs, having recovered less than 107. in an action founded on tort. Upon their applying to chambers, Charles, J., ordered the Taxing Master to proceed to tax the plaintiffs' bill of costs so far as it related to the injunction, and to pay such costs as were due to the plaintiffs. Against this order the defendant now appealed. Harris, Q.C., and Stanger, for the defendant. This was "an action founded on tort, in which the plaintiff recovered less than 107.," within section 116, sub-section 2 of the County Courts Act, 1888, and in which, therefore, the successful party was not entitled to any costs unless the Judge certified for the same. The Judge expressly made no order as to costs, leaving the plaintiffs to their strict rights on the judgment, whatever they might be. The action, if for title, could have been brought in the County Court, since the bank was under the value of 50l. a year. [GRANTHAM, J.-I think counsel subsequently applied to me for a certificate; but I said that I made no order as to costs, leaving the plaintiffs to recover them only if they could. I did not desire to deprive them of any rights they might have to costs, though I thought it was not a case in which costs ought necessarily to have been recovered. W. Graham, for the plaintiffs.-The action was mainly one for an injunction; the claim for damages was for merely nominal damages. The action was in reality one for a declaration of title. If so, it is one in which the principle that "costs follow the event" must be held to apply-Cooper v. Whittingham (1). The issues for an injunction and for damages were quite distinct. The first and main issue was to try the infringement of a right, and for that the plaintiffs, being successful in the event, are entitled to their costs. Section 116 of the County Courts Act, 1888, has no application to such an action at all, but only to one founded on tort. He cited Chapman v. The Midland Railway Company (2) and Goodhand v. (1) 49 Law J. Rep. Chanc. 752; Law Rep. 15 Ch. D. 501. (2) 49 Law J. Rep. Q.B. 449; Law Rep. Q.B. D. 431. Ayscough (3) as to the practice under the old rule of costs on the higher scale in actions for injunction. DAY, J.-I am clearly of opinion that in the absence of any certificate, or order of the Court or Judge at chambers expressly giving the plaintiffs their costs, they are not entitled by law to recover any upon this judgment. The action was an action for trespass. It was, therefore, an action founded on tort. It was one which might have been brought in the County Court, and in which the plaintiff's might have recovered damages in the County Court. It is, therefore, clearly within the terms of the County Courts Act, 1888 (51 & 52 Vict. c. 43), s. 116. In such a case, if brought in the High Court, if less than 107. is recovered, the successful party is by law not entitled to any costs. The mere claim for the injunction does not take it out of the County Court Act, 1888; otherwise parties might be tempted to tack on a claim for an injunction in every case where it was possible. The provisions of this section cannot be affected by the mere fact of the Judge having granted the injunction at the close of the case. A Judge would, doubtless often not grant an injunction at all in such cases if he thought that it would carry costs. Whether an injunction be claimed or granted, this provision depriving the successful party of costs if less than 107. is recovered in an action founded on tort, or less than 207. in an action founded on contract, must prevail. GRANTHAM, J.-I held a strong opinion at the time that this was not a case which need have been brought in the High Court. Could, however, any costs have been legally shewn to have belonged to the plaintiffs, after the verdict in their favour, I was not willing to deprive them of such. This strip of land was really of little or no value in itself. I doubt whether it was worth more than 10%. altogether. In granting an injunction to restrain any further trouble in the future between the plaintiffs and the defendant, I certainly did not intend to give them (3) 52 Law J. Rep. Q.B. 97; Law Rep. 10 Q.B. D. 71. St. John's College, Cambridge, v. Pierrepont. any costs other than those they might be legally entitled to get; and now, in view of the wording of this section and the nature of the action, I am clearly of opinion that they are not entitled to any costs. Appeal dismissed. Solicitors Cole & Jackson, agents for Francis & Francis, Cambridge, for plaintiffs; Paterson, Snow & Co., agents for Mee & Co., East Retford, for deferdant. 1891. Oct. 27. } PEDLEY AND MAY V. MORRIS. Libel-Solicitor-Advocate-Defamatory words published in Objections lodged in the Taxation of a Bill of Costs-Order LXV. rule 27, sub-rules 39 and 40-Privilege. The plaintiffs and the defendant acted as solicitors for parties to certain administration proceedings, in the course of which an order was made that the parties represented by the defendant might attend the taxation of the plaintiffs' costs at the expense of the estate. The plaintiffs delivered their bill of costs, and for the purpose of sustaining objections to the taxation thereof the defendant lodged his objections in writing, pursuant to Order LXV. rule 27, sub-rules 39 and 40. These objections contained a libel on the plaintiffs as solicitors:-Held, that the occasion of publishing the libel was absolutely privileged. Munster v. Lamb (52 Law J. Rep. Q.B. 726; Law Rep. 11 Q.B. D. 588) followed and approved. This was an action of libel arising out of objections on taxation of a bill of costs of the plaintiffs in an administration action in the Chancery Division. The parties are both solicitors, the plaintiffs having represented certain beneficiaries under the will of one John Green Hare, on whose behalf an administration action was commenced against the executors; the defendant having represented certain creditors. An order was made in the action that creditors represented by the defendant might attend the taxation of the costs of the plaintiffs at the expense of the estate. The plaintiffs thereupon delivered their bill of costs, and, for the purpose of sustaining objections raised before the Master, it was necessary, under Order LXV. rule 27, sub-rules 39 and 40, that the defendant should lodge his objections in writing. This the defendant did, and in such objections made use of the defamatory words complained of, casting serious imputations on the character and conduct of the plaintiffs as solicitors. In respect of such defamatory words this action of libel was brought. The defence alleged (inter alia) that the words complained of were published by the defendant only as objections lodged in the taxation referred to, and only in his capacity of solicitor and advocate for certain parties to the said administration proceedings who, by leave of the Court, were attending the taxation, and in discharge of the duties imposed upon him by the rules and practice of the Court; that such publication was absolutely privileged; and that the facts stated in the statement of claim disclosed no cause of action. This defence was alleged in the plaintiffs' reply to be no answer in point of law to the plaintiff's claim. The questions of law thus raised were, by order made on the defendant's application, set down to be argued before the Court, all other proceedings in the action being in the meanwhile stayed. Sidney Woolf, Q.C. (W. Graham with him), for the defendant.-The defendant's objections had to be made in writing, and then lodged, under Order LXV. rule 27, sub-rules 39 and 40. The alleged publication therefore was in a judicial enquiry, and was absolutely privileged. [He cited Munster v. Lamb (1), and read the judgment of Lord Esher therein; and cited also Kennedy v. Hilliard (2).] Horne Payne, Q.C. (Rentoul with him), for the plaintiffs, relied chiefly on Bruton v. Downes (3), in which Bramwell, B., held that an attorney's bill of costs is in no (1) 52 Law J. Rep. Q.B. 726; Law Rep. 11 Q.B. D. 588. (2) 10 Ir. C.L. R. N.S. 195. (3) 1 F. & F. 668. Pedley and May v. Morris. sense a judicial proceeding, although delivered under a Judge's order, and submitted that, "if a bill of costs was not a judicial proceeding, objections thereto. could not be considered such, and that therefore they were not privileged-Henderson v. Broomhead (4), and per Sir Barnes Peacock in The Bank of British North America v. Strong (5). The privilege at any rate can only be a qualified privilege, and the question of malice is for the jury. DAY, J.-The question is, whether the occasion of making the alleged libel was absolutely privileged. The libel is contained in objections to a bill of costs. In these objections allegations are made reflecting on the character of the plaintiffs, who were solicitors for one of the parties to certain proceedings in the Chancery Division. Imputations are sometimes reasonably, and very often unreasonably, cast upon people in judicial proceedings. By the Rules of Court-namely, Order LXV. rule 27, sub-rules 39 and 40— it is necessary that objections to a bill of costs should be made in writing and lodged. But it is said that they reflect on the character of the plaintiffs. It seems to me that such objections are the same as objections made before and in the presence of the Master himself. If so, the defendant's objections come within both the letter and the principle laid down in Munster v. Lamb (1) and the cases therein mentioned, to which I cordially, entirely, and respectfully accede and assent, for if no such freedom be allowed to advocates, there can be no proper discharge of their duty to their clients. It would be highly dangerous and pernicious that persons making statements or giving evidence in judicial enquiries should be subjected to any legal proceedings for doing so. The proceedings before the Master are quasijudicial, and the occasion is absolutely privileged. GRANTHAM, J.-I am of the same opinion. Although the case does not come within the letter, it is nevertheless within (4) 4 Hurl. & N. 569; 28 Law J. Rep. Exch. 360. (5) Law Rep. 1 App. Cas. 307. the principle of Munster v. Lamb (1). But it is not necessary to rely on that case, because the question here comes within the principle of the earlier cases which were considered therein, and the principle of those cases has long been acknowledged as the law of this country. The doubt, if any, has perhaps arisen from the language of the Master of the Rolls, from which Mr. Horne Payne argued that solicitors were not meant, as they were not expressly mentioned. But he admitted that the enumeration of the Master of the Rolls was not exhaustive. Judgment for the defendant, and action dismissed, with costs. Solicitors-W. C. Goulding, for plaintiffs; E. C. Rawlings, for defendant. 1891. May 11. THE HIGHWAY BOARD OF THE Local Government-County CouncilAgreement for Repair of Main Roads by District Council-Road Authority-Tramways Act, 1870 (33 & 34 Vict. c. 78), s. 3— Local Government Act, 1888 (51 & 52 Vict. c. 41), 8. 11. The plaintiffs entered into an agreement with the defendants, whereby, in consideration of a certain sum to be paid by the defendants to the plaintiffs, the plaintiffs agreed to maintain and repair the main roads within their district for a period of one year :-Held, that, notwithstanding the agreement, the defendants continued to be the road authority in respect of the main roads in question, and that they were therefore entitled to the surplus material excavated in the course of the construction of a line of tramway along one of such roads. Point of law raised upon the pleadings under Order XXV. rule 2. Stockport and Hyde Highway Board v. Chester County Council. On the 6th of September, 1889, an agreement under seal was entered into between the plaintiffs and the defendants, whereby, in consideration of a certain sum of money therein mentioned, to be paid by the defendants to the plaintiffs, the plaintiffs agreed to maintain and repair the main roads within their district for a period of one year. The plaintiffs having brought an action to recover the agreed sum, the defendants counter-claimed for 350., in respect of the wrongful conversion by the plaintiffs of certain surplus paving, metalling, and material excavated from one of the main roads for the purpose of constructing certain lines of tramway. By the provisional order which authorised the construction of the tramway, and which was duly confirmed by Act of Parliament, it was provided that any paving, metalling, or material excavated by the promoters in the construction of their works from any road under the jurisdiction or control of any road authority, might be applied by the promoters, so far as might be necessary, in or towards such works, or in or towards the reinstating of such road and the maintenance for six months after the completion of the tramways of so much of the roadway on either side of such tramways as they were required to maintain under section 28 of the Tramways Act, 1870, or by the provisional order, and that the promoters should, if so required, deliver the surplus paving, metalling, or material not used or required to be retained for the purposes aforesaid to the surveyor of the road authority, or such person or persons as he might appoint to receive the same. The defendant's surveyor had appointed the plaintiffs' surveyor to receive the surplus material in question, and to store the same on his behalf for future use in repairing the main roads. The plaintiffs had used the surplus material in the repair of roads other than main roads. Macmorran, for the defendants.-The plaintiffs have converted these materials to their own use. Where a road is vested in a public body, that body is the road authority. Under the Local Government Act, 1888, section 11 (1), main roads are vested in the county council. By the agreement in the present case the Highway Board merely became agents to do the repairs. For all other purposes the county council remained the road authority. It would be most inconvenient that the county council should cease to be the road authority during the continuance of the agreement, and should upon its expiration become so again. The Court called on Slade Butler, for the plaintiffs.-By section 11, sub-section 4, of the Local Government Act, 1888, the Highway Board became the road authority during the subsistence of the agreement. [DAY, J.-It seems to me that subsection 4 is only meant to give the district council the powers of the road authority so far as they may be incidental to the carrying out of the repairs.] If the tramway contractors had failed to fill in a hole, it would have been the duty of the plaintiffs to have done so. DAY, J.-In my opinion the defendants are right in regard to their counter-claim. Section 11 of the Local Government Act, 1888, seems to me to be clear. The road was vested in the county council. They let it to the district highway board to do certain repairs. But that does not alter the liability of the parties. The highway board undertook to do the repairs for one (1) By 51 & 52 Vict. c. 41. s. 11, sub-s. 4: "The county council and any district council may from time to time contract for the undertaking by the district council of the maintenance, repair, improvement, and enlargement of and other dealing with any main road; and if the county council so require, the district council shall undertake the same, and for the purposes of such undertaking the district council shall have the same powers and be subject to the same duties and liabilities as if the road were an ordinary road vested in them." And by sub-section 6: "A main road and the materials thereof, and all drains belonging thereto, shall . . . vest in the county council." By the Tramways Act, 1870 (33 & 34 Vict. c. 78), s. 3: "The term 'road authority' shall any local authority, board, town council, body corporate, commissioners, trustees, vestry, or other body or persons in whom a road as defined by this Act is vested, or who have the power to maintain or repair such road." mean |