such "good cause," then the Court of Appeal will not interfere with the judge's discretion, though they may not approve of the way in which he has exercised it. (Jones v. Curling and another (C. A.), 13 Q. B. D. 262; 53 L. J. Q. B. 373; 32 W. R. 651; 50 L. T. 349; Sutcliffe v. Smith, 2 Times L. R. 881; but see Huxley v. West London Extension Ry. Co., 17 Q. B. D. 373.)

But if the judge chooses to make an order, that order is not necessarily that each party should pay his own costs. He may for very good cause order that the successful plaintiff should pay defendant's costs, as well as his own (see per Bramwell, L. J., 15 Ch. D. at p. 41); and where there has been a nonsuit, and a new trial, the judge who tries the case the second time may order that the successful plaintiff shall pay the whole costs of both trials. (Harris v. Petherick (C. A.), 4 Q. B. D. 611; 48 L. J. Q. B. 521; 28 W. R. 11; 41 L. T. 146.) But of course such an order would only be made in an extreme case, and where the plaintiff has misconducted himself. (See Norman v. Johnson, 29 Beav. 77.) A successful defendant cannot be made to pay the whole costs of the action under any circumstances. (Dicks v. Yates (C. A.), 18 Ch. D. 76, 85; 50 L. J. Ch. 809; 44 L. T. 660; Re Foster v. Great Western Rail. Co., 8 Q. B. D. at pp. 521, 522; 30 W. R. 398.)

Illustrations.

Where an action of libel was brought on a private letter written by a lady to an intimate friend, and shown only to the plaintiff and two others, and the plaintiff's own conduct had given rise to the suspicions entertained by the writer, and the jury gave a verdict for 107. damages; Huddleston, B., made an order depriving him of costs, and his discretion was approved both in the Divisional Court and in the Court of Appeal,

Harnett v. Vise and Wife (C. A.), 5 Ex. D. 307; 29 W. R. 7. Where a defendant denied publication, pleaded privilege, and also paid ten shillings into Court, and the jury found for the plaintiff on all the other issues, except the last, as to which they found that the amount paid into Court was sufficient, Palles, L. C. B., gave judgment for the defendant without costs, and the Divisional Court refused to interfere with his discretion.

Kearney v. Harrison, 10 L. R. Ir. 17.

This rule as to nominal damages carrying costs applies in all Courts whatsoever in England, and to all actions of slander and libel, wherever tried, so long as they come before a jury. Thus, in the Salford Hundred Court of Record (Turner v. Heyland, 4 C. P. D. 432; 48 L. J. C. P. 535; 41 L. T. 556), or in the Liverpool Court of Passage (King v. Hawkesworth, 4 Q. B. D. 371; 48 L. J. Q. B. 484; 27 W. R. 660; 41 L. T. 411), the rule is the same as in the High Court. The law is the same in Ireland in all actions tried since the 53rd section of the Judicature Act (Ireland), 1877, came into operation. (Cassidy v. O' Loghlen, 4 L. R. Ir. 1, 731.) And it is so in New South Wales also. (Harris v. Davies, 10 App. Cas. 279; 54 L. J. P. C. 15.)

I presume that Order LXV. rule 1 applies to the trial of a remitted action before a County Court judge and a jury. A County Court judge had power to certify under the 30 & 31 Vict. c. 142. (Taylor v. Cass, L. R. 4 C. P. 614; 17 W. R. 850; 20 L. T. 667.) But though it was held formerly that an under-sheriff executing a writ of inquiry was a "judge" within that Act (Craven v. Smith, L. R. 4 Ex. 146; 38 L. J. Ex. 90; 17 W. R. 710; 20 L. T. 400), yet it would seem that such an assessment of damages is not the trial of "any action, cause, matter or issue" by a jury; that the costs do not therefore necessarily follow the event; but that the judge at chambers has after the return to the writ discretionary power to deprive the plaintiff of costs. (Gath v. Howarth, Weekly Notes, 1884, p. 99; Bitt. Ch. Cas. 79.) A master, to whom an action is referred with the powers of a judge at Nisi Prius, may, in his award, make any order as to costs, not inconsistent with the terms of the submission. (Bedwell v. Wood, 2 Q. B. D. 626; 36 L. T. 213.) It is, however, usual in references to give the arbitrator express power over the costs. I can only find one case reported in which an action of libel has been referred. (Jones v. Young, 2 H. & C. 270; 32 L. J. Ex. 254.)

Special Costs.

Application for any special costs, such as those of shorthand writer's notes, or of a commission abroad, or of a special jury, or of photographic copies of the libel, should be made when judgment is delivered.

No order will be made as to such costs after the judgment has been drawn up; they must be borne by the party who has incurred them. (Ashworth v. Outram, 9 Ch. D. 483; 27 W. R. 98; 39 L. T. 441; Executors of Sir Rowland Hill v. Metropolitan District Asylum, 49 L. J. Q. B. 668; 43 L. T. 462; W. N. 1880, p. 98; Davey v. Pemberton, 11 C. B. (N. S.) 629.) To entertain such an application would substantially be to rehear the cause. (In re St. Nazaire Co., 12 Ch. D. 88; 27 W. R. 854; 41 L. T. 110.)

Costs of Separate Issues.

By Order LXV. rule 2, when issues in fact and law are raised upon a claim or counterclaim, the costs of the several issues respectively, both in law and fact, shall, unless otherwise ordered, follow the event.

Under the former rule it was decided that where the plaintiff joined several distinct causes of action in one suit, and succeeded as to some, and failed as to others, the word "event" must be read distributively, and the defendant was entitled to tax his costs of the issues found for him, unless the Court or a judge otherwise ordered. (Myers v. Defries, 5 Ex. D. 15, 180; 48 L. J. Ex. 446; 49 L. J. Ex. 266; 28 W. R. 258, 406; 41 L. T. 659; 42 L. T. 137; Davidson v. Gray, 5 Ex. D. 189, n. ; 40 L. T. 192; (C. A.) 42 L. T. 834.) So if plaintiff was nonsuited as to one cause of action, but succeeded on another. (Abbott v. Andrews, 8 Q. B. D. 648; 51 L. J. Q. B. 641; 30 W. R. 779.) But there was formerly great difficulty in inducing a taxing-master to apportion the costs of the various issues arising out of the same cause of action. (See James v. Brook, 16 L. J. Q. B. 168; Prudhomme v. Fraser, 2 A. & E. 645; Goodburne v. Bowman, 9 Bing. 667; Biddulph v. Chamberlayne, 17 Q. B. 351; Reynolds v. Harris, 3 C. B. N. S. 267; 28 L. J. C. P. 26; Skinner v. Shoppee et ux., 6 Bing. N. C. 131; 8 Scott, 275; Empson v. Fairfax, 8 A. & E. 296; 3 N. & P. 385; Harrison v. Bush, 5 E. & B. 344; 25 L. J. Q. B. 99; 2 Jur. N. S. 90.) The judges seemed to think it was impossible to apportion costs with such minuteness. (See per Bramwell, L. J., in 4 Q. B. D. at p. 612.) If the taxing-master adopted some rough and ready method of apportionment (as in Knight v. Pursell, 49 L. J. Ch. 120; 28 W. R. 90; 41 L. T. 581), this was considered all that could be expected of him.

But now the above rule is imperative. Hence, in future, if a defendant in an action of defamation both justifies and pleads privilege, and fails on the first plea and wins on the second, the plaintiff must

pay the general costs of the action, for he ought never to have brought it; but all extra costs occasioned by the plea of justification must be paid by the defendant, unless the judge at the trial makes an order to the contrary. There are of course practical difficulties in the way of such a taxation. It is difficult for the master, who was not at the trial, to determine whether it was, or was not, solely in consequence of the plea of justification that a particular witness was subpoenaed, or a particular page of the brief prepared. The plan adopted is to tax the costs of the action generally in favour of the defendant, and then deduct such sum as the plaintiff can prove to have been occasioned by the plea of justification. And so in other cases where several distinct issues are raised. (See Sparrow v. Hill (C. A.), 8 Q. B. D. 479; 50 L. J. Q. B. 675; 29 W. R. 705; 44 L. T. 917.)

Payment into Court.

Money cannot now be paid into Court in any action of libel or slander without admitting the plaintiff's cause of action; no defence can be pleaded at the same time. (Order XXII. rule 1.) Hawkesley v. Bradshaw (C. A.), 5 Q. B. D. 302; 49 L. J. Q. B. 333; 28 W. R. 557; 42 L. T. 285, is no longer law. If the plaintiff accepts the sum paid into Court in satisfaction of his claim, he must give the defendant notice to that effect, and may then proceed to tax his costs, and in case of non-payment within forty-eight hours may sign judgment for his costs. But even in this case the plaintiff is subject to the general jurisdiction of the Court, and may be deprived of his costs, if the whole action was useless or malicious. (Broadhurst v. Willey, Weekly Notes, 1876, p. 21; Nichols v. Evens, 22 Ch. D. 611; 52 L. J. Ch. 383; 31 W. R. 412; 48 L. T. 66.) If the plaintiff does not accept the sum paid into Court, but continues his action for damages ultra, he will recover the whole of his costs of the action should the jury deem the amount paid into Court insufficient; if, on the other hand, they think it sufficient, the defendant will be entitled to the whole costs of the action (Langridge v. Campbell, 2 Ex. D. 281; 46 L. J. Ex. 277; 25 W. R. 351; 36 L. T. 64; Goutard v. Carr (C. A.), 13 Q. B. D. 598, n.; 53 L. J. Q. B. 55, 467, n.; 32 W. R. 242); unless the Court or a judge think fit to make a special order that the plaintiff shall have his costs of the action up to the time when the money was paid into Court, and the defendant shall have only his costs incurred after that time, as in Buckton v. Higgs, 4 Ex. D. 174; 27 W. R. 803; 40 L. T. 755; and see The William Symington, 10 P. D. 1; 51 L. T. 461.

Counterclaim.

It is very seldom that there is a counterclaim in an action of libel or slander; but whenever there is, its presence always complicates the question of costs. In an action for libel or slander there can be no set-off, as the damages claimed are unliquidated; in other words, the counterclaim is not a defence to the plaintiff's action, but a crossaction by the defendant against the plaintiff. It is clear, moreover, that the County Courts Act, 1867, does not apply to actions of libel or slander, nor to counterclaims of any kind. (Blake v. Appleyard, 3 Ex. D. 195; 47 L. J. Ex. 407; 26 W. R. 592.) It follows, therefore, that where the plaintiff's claim is either for libel or slander, and the defendant sets up any counterclaim, and both recover, then, as Brett, L. J., says in Baines v. Bromley (C. A.), 6 Q. B. D. at p. 695; 50 L. J. Q. B. 465; 29 W. R. 706; 44 L. T. 915, “the proper principle of taxation, if not otherwise ordered, is to take the claim as if it and its issues were an action, and then to take the counterclaim and its issues as if it were an action, and then to give the allocatur for costs for the balance in favour of the litigant in whose favour the balance turns. In such a case where items are common to both actions the master would divide them." [This dictum is in accordance with the earlier decisions in Cole, Marchant & Co. v. Firth and another, 4 Ex. D. 301; 40 L. T. 857; Davidson v. Gray, Barrow & Co., 5 Ex. D. 189, n.; 40 L. T. 192; (C. A.) 42 L. T. 834; and Stooke v. Taylor, 5 Q. B. D. 569; 49 L. J. Q. B. 857; 29 W. R. 49; 43 L. T. 208; and has since been recognized as good law in Re Brown, Ward v. Morse (C. A.), 23 Ch. D. 377; 52 L. J. Ch. 524; 31 W. R. 936; 49 L. T. 68; and in Lowe v. Holme and another, 10 Q. B. D. 286; 52 L. J. Q. B. 270; 31 W. R. 400. It is, however, apparently in conflict with Hallinan v. Price, 27 W. R. 490; 41 L. T. 627; and Waring v. Pearman, 32 W. R. 429; 50 L. T. 633. The counterclaim in Lund v. Campbell and others (C.A.), 14 Q. B. D. 821; 54 L. J. Q. B. 281; 33 W. R. 510, was really a set-off.] If the plaintiff recover any sum at all, even a farthing, and the defendant nothing on his counterclaim, then the plaintiff, in the absence of any special order to the contrary, is entitled to the whole costs of the action. (Potter v. Chambers, 4 C. P. D. 457; 48 L. J. C. P. 274; 27 W. R. 414.) If neither plaintiff nor defendant recover anything on either claim or counterclaim, the plaintiff pays the general costs of the action, including those common to both claim and counterclaim, for he commenced the litigation; the defendant pays only such costs as the plaintiff can prove to have been occasioned by the counterclaim. (Saner v. Bilton, 11 Ch. D. 416;