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of the testator. The learned judge came to the conclusion that the signature was that of William Knight, the testator. I should not readily in a case of this kind dissent from the judge who saw and heard the witnesses; but in this case, on the evidence, I should have arrived at the same conclusion. James Harris, the son-in-law, said by the learned judge to be a respectable person and worthy of credit, swears to the signature. The defendant, who denied the signature at the funeral, and whose interest it was to upset the will, never took the trouble to inquire of the attesting witnesses whether it was his father's signature, and whether they had attested that signature, although they both lived near him, and Eades was a relative of his wife, but allowed the widow to remain in possession of the property until her death. These and other circumstances induce me to think that the learned judge was right in holding that the signature was the signature of William Knight, the testator. The circumstances with regard to the destruction of the alleged will are mysterious. Whether it was actually destroyed by the mother, or the son, or both, or what became of it, it is difficult to speculate, but that the document destroyed was the alleged will I entertain no doubt. How, then, does the case stand? The evidence places before me, and I look at, a document in existence two years before his death, and left about so that it might be seen by members of the family, disposing of the testator's property in a way he desired, in a reasonable and probable way, having at its foot his signature, and in the place where you would expect to find the names of the attesting witnesses, the names of Eales and Henningham, both friends of the testator, and living near him. There is no attestation clause; the attesting witnesses are both dead, and the handwriting of only one of them is proved. Unless those two witnesses were simultaneously present when the testator signed his name or acknowledged his signature, the will cannot stand. There is nothing to show they were not. What is the fair and probable inference to be drawn from all the circumstances of this case? The presumption of due attestation is an inference of fact, an inference of reasonable probability. The testator clearly knew he must sign; he knew that there must be two witnesses. Is it not more probable than not that he also knew that those witnesses must be present together? And is it not more probable than not that the signature which purports to be Henningham's signature is his signature? Is it conceivable that the defendant, if he really had any doubt about the due execution of this will, would not have made inquiries of Eades and Henningham ? conduct is more consistent with a belief that the will was duly executed than with any other view. The inference to be drawn in cases of this kind depends upon a number of circumstances peculiar to the cases in which they arose, and the maxim Omnia præsumuntur rite esse acta applies with more or less force according to the circumstances of each case. In every case of this kind the court should be influenced by a desire that the intention of the testator should not be frustrated when the execution of the testator is sufficiently proved and the will on its face complies with the requirements of the statute. The learned judge has decided that he ought to

His

[CT. OF APP.

presume, having regard to all the circumstances of the case, that this will was duly executed. I am unable to say that he was not justified in so presuming. Appeal dismissed with costs. Solicitors for the appellant, Tidy and Tidy. Solicitor for the respondent, W. M. Willcocks.

March 12 and 20.

(Before COTTON, LINDLEY, and LOPES, L.JJ.) GARRARD v. EDGE. (a)

APPEAL FROM THE CHANCERY DIVISION.

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Patent action Infringement Particulars of objections-Certificate as to propriety of objec tions not asked for-Costs of meeting objections -Taxation Improper, vexatious, or unnecessary proceedings-Patents, Designs, and Trade Marks Act 1883 (46 & 47 Vict. c. 57), s. 29, sub-sect. 6-Rules of Court 1883, Order LXV., r. 27, sub-rules 20, 21.

An action was brought to restrain the infringement of a patent. The defendants pleaded no infringement and also invalidity of the patent on the grounds set out in their particulars of objections. At the trial the action was dismissed with costs on the sole ground of no infringement, the court declining to go into the question of validity, and this decision was affirmed on appeal. At the close of the trial no certificate was asked for or granted under sect. 29, sub-sect. 6, of the Patents, Designs, and Trade Marks Act 1883, that the defendants' objections, were "reasonable and proper." Upon the taxation of the defendants' costs the taxing master disallowed all the costs of the particulars of objections, as no certificate had been obtained. The plaintiff then carried in for taxation a bill of costs occasioned by his having The had to meet the defendants' objections. taxing master refused to tax the bill and disallowed it altogether. The plaintiff took out a summons to review the taxation on the ground that the objections were improper, vexatious, or unnecessary "within the Rules of Court 1883, Order LXV., r. 27, sub-rule 20, and that such costs should be set off under sub-rule 21 against the costs payable by him to the defendants. Held (affirming the decision of Kay, J.), that, as the costs of the defendants with reference to their particulars of objections were only disallowed in consequence of the absence of a certificate by the judge under sect. 29, sub-sect. 6, of the Patents, Designs, and Trade Marks Act 1883, and not because their objections were unreasonable, improper, or vexatious, the taxing master could not consider that question, and consequently could not allow any of the plaintiff's costs of meeting the objections.

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If in such a case a plaintiff considers that in consequence of improper or unreasonable objections he has incurred extra costs, he ought to ask the court to direct the taxing master to consider that question, and to direct that the defendant shall pay the costs so incurred by him.

THE plaintiff brought an action in respect of the alleged infringement of his patent by the defen

dants.

(a) Reported by E. A. SCRATCHLEY and W. C. Biss, Esqrs., Barristers-at-Law.

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The defendants pleaded no infringement and also invalidity of the patent, and delivered particulars of objections alleging prior user, some of which they supported by evidence.

At the trial the action was dismissed, with costs, on the sole ground of no infringement, the court declining to go into the question of validity. The plaintiff had, however, called witnesses to meet the defendants' objections to the validity of his patent.

At the close of the trial no certificate was asked for or granted under sect. 29, sub-sect. 6, of the Patents, Designs, and Trade Marks Act 1883 (46 & 47 Vict. c. 57), allowing the defendants' particulars of cbjections as "reasonable and proper," so as to entitle the defendants to the costs of them.

Upon the taxation of the defendants' costs under the judgment the taxing master disallowed all the costs of the particulars of objections, as no certificate had been obtained.

The plaintiff then carried in for taxation a bill of costs occasioned by his having had to meet the defendants' particulars of objections, and applied that such costs might be taxed and set off against the costs payable by him to the defendants, on the ground that the costs occasioned by the particulars of objections were costs of "improper, vexatious, or unnecessary proceedings within the Rules of the Supreme Court 1883, Order LXV., r. 27, sub-rule 20, and that such costs should be set off under sub-rule 21; but the taxing master refused to tax the bill and disallowed it altogether.

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Objections by the plaintiff to the taxing master's refusal having been disallowed by him, the plaintiff took out a summons to review the taxation.

Sub-sect. 6 of sect. 29 of the Patents, Designs, and Trade Marks Act 1883 enacts that:

On taxation of costs regard shall be had to the particulars delivered by the plaintiff and by the defendant, and they respectively shall not be allowed any costs in respect of any particular delivered by them unless the same is certified by the court or a judge to have been proven, or to have been reasonable and proper, without regard to the general costs of the case.

Sub-rule 20 of rule 27 of Order LXV. of the Rules of Supreme Court 1883 provides as follows:

The court or judge may, at the hearing of any cause or matter, or upon any application or proceeding in any cause or matter in court or at chambers, and whether the same is objected to or not, direct the costs of any indorsement on a writ of summons, pleading, summons, affidavit, evidence, notice requiring a statement of claim, notice to produce, admit, or cross-examine witnesses, account, statement, procuring discovery by interrogatories or order, applications for time, bills of costs, service of notice of motion or summons, or other proceeding, or any part thereof, which is improper, vexatious, or unnecessary, or contains vexatious or unnecessary matter, or is of unnecessary length, or caused by misconduct or negligence, to be disallowed, or may direct the taxing office to look into the same and to disallow the costs thereof, or of such part thereof as he shall find to be improper, unnecessary, or vexatious, or to contain unnecessary matter, or to be of unnecessary length, or caused by misconduct or negligence, and in such case the party whose costs are so disallowed shall pay the costs occasioned thereby to the other parties, and in any case where such question shall not have been raised before and dealt with by the court or judge, it shall be the duty of the taxing officer to look into the same (and, as to evidence, although the same may be entered as reud in any decree or order) for the purpose aforesaid, and thereupon the same consequences shall ensue as if he had been specially directed to do so; and

[CT. OF APP.

in the Queen's Bench Division the master shall make such order as may be required to effect the object of this regulation.

The summons was adjourned into court and came on to be heard before Kay, J. on the 7th and 14th Feb.

Marten, Q.C., Moulton, Q.C., and Swinfen Eady, for the plaintiff, contended that, under Order LXV., r. 27, sub-rule 21, his costs occasioned by the defendants' particulars of objections should be set off against the costs he had to pay, and that the taxing master should not have refused to tax his bill merely on the ground of the absence of a certificate allowing the defendants' particulars of objections, but should have looked into the matter to see whether the particulars were "improper, vexatious, or unnecessary," within the meaning of Order LXV., r. 27, sub-rule 20, and, therefore, whether the costs occasioned by them to the plaintiff should be allowed to him. They referred to

Patents, Designs, and Trade Marks Act 1883, s. 29,
sub-sect. 6;

Badische Anilin und Soda Fabrik v. Levinstein, 53
L. T. Rep. N. S. 750; 29 Ch. Div. 366; 57 L. T.
Rep. N. S. 853; 12 App. Cas. 710;

Simmonds v. Hitchman, 53 L. T. Rep. N. S. 751, n.;
29 Ch. Div. 417, n.; Eng. Rep. Jan. to March
1881, p. xvi. App. ;

Longbottom v. Shaw, 61 L. T. Rep. N. S. 325; 43
Ch. Div. 46;

Boyd v. Horrocks, 6 Rep. Pat. Cas. 152;

Aston, Q.C. and Chadwyck Healey, for the defendants, referred to

Re Mills' Estate, 55 L. T. Rep. N. S. 465; 34 Ch.
Div. 24;

Rules of Court 1883, Order LXV., r. 1.
Marten, Q.C. replied.

KAY, J.—I am bound to say I disagree with a great part of the argument addressed to me on each side of this case; but I have arrived at a conclusion quite satisfactory to my own mind, and I will endeavour to state as shortly as I can the grounds of it. This is a patent action. The plaintiff's action at the trial was dismissed with costs. The defendants had denied the validity of the patent and denied infringement. As I understand, the action was dismissed with costs because the plaintiff could not make out the case of infringement, and the court declined to give any judgment at all upon the issue whether the patent was valid or not. Now, the defendants had carried in certain particulars of objections to the validity of the patent. At the trial the court did not give any certificate that those objections were reasonable and proper. Therefore, there has been no adjudication by the court whether the particulars of objections were reasonable and proper or not. For anything I know, they may have been perfectly reasonable and proper. I never heard that a defendant was not entitled to have two strings to his bow, that he might not say, "I have not infringed your patent; and even if I have, your patent is invalid." Clearly, he can raise both of these issues, and because he succeeds upon one it does not necessarily follow that the other issue was improper or unnecessary. Then the court, not having given any certificate, by the terms of the 29th section of the Patents, &c., Act of 1883, although the plaintiff was ordered to pay the costs of the defendants, the defendants could not recover the costs of the particulars they had delivered. That

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section provides that, in an action for infringement of a patent, the defendant must deliver particulars of objections, and on taxation of costs regard shall be had to the particulars delivered by the defendant, and the defendant shall not be allowed any costs in respect of any particulars delivered by him unless the same is certified by the court or a judge to have been proven or to have been reasonable and proper. I have read the section shortly, leaving out the reference to the plaintiff. But the enactment refers to the plaintiff and defendant respectively. The defendants here could not get any costs whatever of these particulars, and although the costs were carried in by the defendants with a laudable anxiety to get all they could out of the plaintiff-it seems to be considered an extremely proper proceeding the taxing master disallowed them en bloc. He said, "I disallow them because there is no certificate." I never saw a case conducted with so much determination on the part of a litigant party to get every advantage he could. I had before me an extraordinary application, which, if I remember rightly, I refused, and then it was refused by the Court of Appeal. The action came on for trial and then went to the Court of Appeal, and now we have a fight over the costs. The plaintiff now says: "True, all these costs have been disallowed to the defendants, and disallowed because no certificate was given. But these proceedings of the defendants, the costs of which have been disallowed, caused me to incur very considerable costs with the view of meeting them; and I ask that these costs, or some of them, which I have incurred shall be allowed to me and set off against the costs which I have to pay." Well, if there is a law to that effect, it is quite right that the plaintiff should have that relief. He relies upon Order LXV., r. 27, subrule 20, which provides, reading it shortly, that the court may, at the trial or otherwise, direct the costs of any pleading, summons, affidavit, evidence, and so on, which is improper, vexatious, or unnecessary, or contains vexatious or unecessary matter, to be disallowed, or may direct the taxing officer to look into the same and disallow the costs; and in such case the party whose costs are so disallowed shall pay the costs occasioned thereby to the other parties. You must therefore have a disallowance either by the court or by the taxing master of costs of, in this case, the defendants because they are improper, vexatious, or unnecessary. The taxing master says, "I have disallowed the costs of all the particulars of objections, not because they are improper, vexatious, or unnecessary, but simply because the defendants have not got the proper certificate." As I understand, the argument is hardly pushed so far that all the costs occasioned by the evidence brought in support of those objections, or all the costs which the plaintiff incurred in order to meet them, shall be allowed to him, but it is said that the taxing master ought to look into the matter, and see whether certain of the costs occasioned to the plaintiff by those objections shall not be allowed to him. By way of illustration this case is put: One of those objections, it is said, or some of them, were not supported by the defendants by any evidence at all; they did not adduce any witnesses whatever to prove the objection; and that objection must have been improper, or at least unnecessary, and accordingly

[CT. OF APP.

the costs occasioned to the plaintiff by that objection ought to be allowed to him, and set off against the costs he has to pay. That is the argument. But I wonder what would have happened supposing the court had given a certificate that that objection was not reasonable. Would the plaintiff then have been entitled to the costs for which he is now asking? To my mind it is clear that he would not. The plaintiff would not be entitled to the costs occasioned by any one of these objections if the court had given a certificate. The court has not given a certificate, whether because the court was not asked or because the court would not go into the matter is quite indifferent. There has been no certificate, and that is the only reason why the taxing master has disallowed those costs. He has not disallowed them because they were improper, unnecessary, or vexatious. In order to now grant to the plaintiff that which he asks, as a precedent condition of this order, there must have been a disallowance of costs of the defendant because they were improper, unnecessary, or vexatious. It seems to me the taxing master is perfectly right, and the reason he has given is perfectly right. He says: "I have not disallowed these costs of the defendants because they were improper, unnecessary, or vexatious, but merely because a certificate has not been given." Therefore the precedent condition which is necessary for the plaintiff to make out before he can get that set-off of costs which he is trying to get fails him. He has to show that the costs of the defendants have been disallowed because they were improper, unnecessary, or vexatious, which they have not. I therefore dismiss the summons with costs. From this decision the plaintiff appealed.

Marten, Q.C. and Swinfen Eady for the appellant. In the absence of the certificate under sub-sect. 6 of sect. 29 of the Patents, Designs, and Trade Marks Act 1883, the particulars of objection delivered by the defendants must be taken to have been unreasonable and improper, and it was the duty of the taxing master to have considered that question without any direction from the judge Order LXV., r. 27, sub-rule 20, provides that the judge may disallow costs, or direct the taxing master to look into the matter, or if the judge takes neither of these courses it is the duty of the taxing master to look into the matter without any direction from the judge. The defendants by not having asked for a certificate cannot oust the taxing master's jurisdiction. The costs ought to be apportioned:

Badische Anilin und Soda Fabrik v. Levinstein, 53
L. T. Rep. N. S. 750; 29 Ch. Div. 366, 417;
Simmonds v. Hitchman, 53 L. T. Rep. N. S. 751, n.;
29 Ch. Div. 417, n. ;

Re Wormsley, 39 L. T. Rep. N. S. 85.

Though the court would not go into the matter the taxing master could and ought to have done so :

Longbottom v. Shaw, 61 L. T. Rep. N. S. 325; 43
Ch. Div. 46;

Boyd v. Horrocks, 6 Rep. Pat. Cas. 152.

Aston, Q.C. and Chadwyck Healey for the defendants. The defendants not having asked for a certificate under sect. 29, sub-sect. 6, of the Patents, &c., Act 1883, could not be allowed these costs, and they having made no claim for them they were not disallowed. Then these costs not

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having been disallowed, Order LXV., r. 27, subrule 20, does not apply, and the taxing master could not consider the question as to these costs of the plaintiff. That order does not give the Chancery Division a new jurisdiction as to costs. A successful defendant cannot be ordered to pay the plaintiff's costs:

Foster v. The Great Western Railway Company, 46 L. T. Rep. N. S. 74; 8 Q. B. Div. 515. The rule does not apply to costs within sect. 29 of the Patents, Designs, and Trade Marks Act 1883. Under that section it is the duty of the judge to consider whether the particulars of objections are proper, and he cannot delegate that duty to the taxing master. The judge had the power to disallow the costs, bus did not do so.

Marten, Q.C. in reply.

COTTON, L.J.-This case comes before us by way of appeal from an application to review the taxing master's certificate, and it comes under somewhat special circumstances. The action was brought to restrain an alleged infringement of a patent, succeeded. There were a good many objections taken to the validity of the patent on which the court did not decide in favour of the defendants; and for some reason or other the defendants did not ask for a certificate under sect. 29, sub-sect. 6, of the Patents, Designs, and Trade Marks Act 1883, that their objections were properly taken. The judge certainly could not have found that they were proved, and he was not asked to find that they were reasonable and proper. Then on taxation the taxing master allowed the costs incurred with reference to those objections taken by the defendants, but afterwards, in consequence of the provisions of the section I have referred to, he struck them out without entering into the question of the propriety of these costs or the proceedings taken by the defendants. That subsection provides that, "On taxation of costs regard shall be had to the particulars delivered by the plaintiff and by the defendant; and they respectively shall not be allowed any costs in respect of any particular delivered by them unless the same is certified by the court or a judge to have been proven or to have been reasonable and proper without regard to the general costs of the case." Those costs were disallowed, I suppose, at the instance of the plaintiff. But then the plaintiff brought in a bill of costs with reference to the proceedings, which he had said he had taken in consequence of the objections delivered by the defendants, and he contended that, under Order LXV., r. 27, sub-rule 20, he was entitled to charge the defendants with the costs of the proceedings which he, the plaintiff, had taken to meet the objections taken by the defendants. The taxing master declined to enter into the question at all, because he considered that, as he had not been called upon and could not be required to tax the costs brought in by the defendants with reference to the objections which they had taken, and on which the judge did not decide at ail, he had no power to act under this 20th subrule, and the judge on the appeal to him thought he was right. It is said with reference to the costs of proceedings taken by the defendants, if on taxation it is found either at the instance of the judge, or at the instance of the taxing master,

[CT. OF APP.

that those objections were improper, unnecessary, or vexatious, then any costs which they have caused the other party to incur will be ordered to be paid by them. But here, as I said before, the taxing master never had power to enter into the question on the taxation of the defendants' costs, whether these proceedings were in any way vexatiously or improperly taken by them, and, therefore, he considered he could not enter into the question which the plaintiff wished to bring before him. With that the judge agreed, and in my opinion he was right, because, although it is very true power is given by the rule to the taxing master of his own mere motion to enter into the question if he finds that proceedings by one party are vexatiously or improperly taken and to see what expense was caused to the other party by these proceedings, yet there is, in my opinion, a condition precedent to his having the power to enter into the question what, if anything, ought to be paid to the other person in consequence of improper proceedings, namely, that the defendants' costs must have been disallowed on the ground that the proceedings in respect of which they were incurred were improper, vexatious, or unnecessary. It was said that these particulars must be taken to be improper and vexatious with reference to this rule, because the judge has not certified that they are either proven or that they are reasonable and proper, and therefore in the mere absence of the certificate of the judge which would enable the defendants to carry in their costs and to be allowed such of them as the taxing master did not strike out, of itself shows that these particulars were vexatious or improper. But I cannot agree with that. The Act of Parliament says that regard shall be had to the particulars of objections delivered in the case of the defendant, and that then if he does not get the certificate he shall not be allowed on taxation any costs of these particulars. But that is for an entirely different object from what was aimed at by the 20th sub-rule. It does not at all follow that because the defendants have not liked or wished or thought it desirable to ask for a certificate, or because the judge has not granted a certificate, the matter must be considered as coming within the 20th sub-rule so as to enable the other party, the plaintiff, to charge the defendants with the costs of any proceedings which he has taken in consequence of the objections raised, but as to which they have not got a certificate. It is very true that that may seem to be hard on the plaintiff, but, in my opinion, he took the wrong course. If he wished to raise this point he ought to have asked the judge to direct the taxing master to see whether in consequence of any proceedings which had been improperly taken by the defendants, he had been put to extra costs, and to tax these costs, and to allow them to him as against the defendants. He did not think of doing that, just as the defendants did not think of asking for a certificate that, although their objections were not proved, yet they were properly taken. For some reason the plaintiff-whether because he did not think of it or because he did not think it prudent to do so did not ask the judge to give any such direction. That, in my opinion, having regard to the 20th sub-rule, is what ought to be done. The judge can direct the taxing master to look into the costs and to see whether any proceedings

CT. OF APP.] EDDOWES V. THE ARGENTINE LOAN AND MERCANTILE AGENCY COMPANY. [CT. OF App.

were vexatious or improperly taken; and if he does not do it, the taxing master, in taxing the costs of any party, can consider whether the proceedings to which those costs relate were proceedings which were vexatious or improperly taken. But, if it does not become the duty of the taxing master to tax the costs of any party, he cannot enter into the question under this rule, whether those costs have been improperly or vexatiously incurred, and have put the other party to unnecessary costs which the party causing those costs ought to pay. Of course, if the plaintiff thinks that, in consequence of improper or vexatious objections taken by his opponent, he has been put to unnecessary and improper costs, he can ask the judge if there is a decision in favour of the defendant, and if the defendant does not ask for a certificate that those objections were properly taken, to direct the taxing master to see whether any proceedings have been vexatiously or improperly taken by the defendant; and to direct that he, the plaintiff, shall get from the defendant the costs of any proceedings which he has taken in consequence of objections improperly taken by the defendant. In my opinion here, that was the view which the taxing master took, and which Kay, J. took, and I think that was right. I do not read the whole of the sub-rule, but the case turns upon this provision: "In such a case the party shall pay the costs occasioned thereby to the other parties; and, in any case, where such question shall not have been raised before, and dealt with by the court or judge, it shall be the duty of the taxing officer to look into the same for

the purpose aforesaid." He is to see as to the costs which he can tax, and which it is his duty to tax, whether or not there have been any costs relating to proceedings improperly taken. Here, as I stated, in consequence of the course which was taken by the defendants, he could not enter into this question. The costs of the proceedings in respect of which the defendants did not get a certificate never came for taxation in such a sense that the taxing master could judge whether or not such proceedings were vexatiously or improperly taken. In my opinion the appeal fails. In future parties, if they desire to raise such a question as this, should see that they get a direction from the judge so as to enable and direct the taxing master to look into what the plaintiff here is desirous should be looked into, which, of course, he can do on the judge's direction.

LINDLEY, L.J.-I think there is a difficulty in applying the 20th sub-section of rule 27 of Order LXV. to patent cases That rule is generally expressed as applicable to all actions, and there is nothing at all in the rule about particulars of objections in patent actions. They are not specially dealt with at all, and the difficulty arises from having to apply that rule to a case in which particulars of objections are specially dealt with. They are specially dealt with by the 29th section of the Patents, Designs, and Trade Marks Act, and when you come to consider and work the two together there is a little difficulty about it, but I am not at all prepared to say that the true construction is not that which has been said to be correct by the taxing master, Kay, J., and my learned brother. There is a difficulty about it, but not a difficulty so great as to lead me to express a contrary opinion. I think, when you come

to spell it out, that that view is correct, and that if ever a plaintiff wants to get costs occasioned by improper objections he must ask for them. That has this "immense convenience, that the judge who knows all about the case can give directions, whereas the taxing master who knows nothing about it would be exceedingly embar rassed in applying this rule to patent cases when the point raised is, as here, that the particulars of objections have not only not been certified as being proper, but have put the other party to extra costs. It is a very difficult matter for the taxing master to settle, and a comparatively easy matter for the judge to settle when he has tried the case. I think therefore the appeal fails.

LOPES, L.J.-Having regard to what has happened in this case and to sect. 29, sub-sect. 6, of the Patents, Designs, and Trade Marks Act 1883, there has been no such disallowance within the meaning of sub-sect. 20, rule 27, of Order LXV. of the Rules of the Supreme Court as to give the taxing master jurisdiction to deal with the costs in this case. Of course this depends on

the construction of the rule, and I think that Kay, J. and the taxing officer have both properly and correctly construed that rule. I think therefore that the appeal should be dismissed with costs.

Solicitors: Francis and Johnson; Robinson, Preston, and Stow, agents for Alfred Pointon, Birmingham.

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The jurat of an affidavit stated that it was "Sworn at R. in the British Vice-Consulate, this 20th

day of January 1890." It was signed by A. as vice-consul, and the seal of the vice-consul was appended.

There were some alterations in the affidavit which

were initialed, and some blanks were filled up in the same handwriting as the signature. Held, that, though the words "before me" should have been inserted, the reasonable probability was that it was sworn before the vice-consul; and it was a case in which the court should ezercise the power given by Order XXXVIII., r. 14, and order the affidavit to be received. Decision of Kekewich, J. affirmed.

THIS was an appeal by the defendants from a decision of Kekewich, J. refusing an application by them to take off the file an affidavit made by the plaintiff, on the ground of irregularity.

The affidavit in question was made by the plaintiff, who resides in the Argentine Republic, in answer to interrogatories delivered by the defendants for her examination. The principal irregularity in the affidavit was in the form of the jurat, which was as follows:

Sworn at Rosario de Santa Fé, Argentine Republic, in the British Vice-Consulate, this 20th day of January 1890.-(Signed) H. M. MALLET, British Vice-Consul. The seal of the vice-consul was also appended. (a) Reported by W. C. Biss, Esq., Barrister-at-Law.

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