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Order as to Costs, under Rules, 1883, O. lxv.

275 under the proviso, may appear from the conduct of the parties prior to and conducing to the litigation. Harnett v. Vise, 5 Ex. D. 307, C. A. And, the judge may even order a plaintiff who has recovered only a nominal sum to pay the defendant's costs. Harris v. Petherick, 4 Q. B. D. 611, C. A. The judge may ex mero motú make an order to deprive the plaintiff of costs though no application has been made to him on the part of the defendant. Turner v. Heyland, 4 C. P. D. 432; Collins v. Welch, 5 C. P. D. 27, C. A. The judge may make an order as to costs after the trial, though it would seem he must make it within a reasonable time. See Bowey v. Bell, infra.

Where no application has been made to the judge an application may be made to a divisional court to deprive a successful party of his costs; Myers v. Defries, Siddons v. Lawrence, 4 Ex. D. 176, C. A.; provided such application be made within a reasonable time; Brooks v. Israel, 4 Q. B. D. 95 ; but, not otherwise. Bowey v. Bell, Id. As the decision of the court under this order is made final by the J. Act, 1873, s. 49, the jurisdiction of the divisional court cannot be exercised by a single judge under the Appellate Jurisdiction Act, 1876 (39 & 40 Vict. c. 59), s. 17. See Rules, 1883, O. lix., r. 1 (e.).

In any case in which there is but one issue between the parties no difficulty can arise as to the meaning of the term "event," in O. lxv., r. 1. Where there are several distinct causes of action on which the plaintiff and defendant respectively succeed, the term is to be taken distributively, and the defendant is entitled to the costs of the issues found for him. Myers v. Defries, 5 Ex. D. 15, 180, C. A. So, where the plaintiff fails on certain issues and succeeds as to others. Abbott v. Andrews, 8 Q. B. D. 648. This principle is now expressly laid down by rule 2, ante, p. 274.

Where the defendant succeeds on a simple set-off, or, on a counter-claim founded on matters that would have been a defence prior to the J. Acts, and to an amount not less than the plaintiff's claim, he has a complete defence to the action, and is therefore entitled to his costs. See Stooke v. Taylor, 5 Q. B. D. 569, 576, et seq., per Cockburn, C. J.; Baines v. Bromley, 6 Q. B. D. 691, 694, per Brett, L. J.; Lowe v. Holme, 10 Q. B. D. 286; Chatfield v. Sedgwick, 4 C. P. D. 459, C. A.

Where, however, the counter-claim is in the nature of a cross action and the plaintiff is successful on his claim, and the defendant also on his counter-claim, the plaintiff is entitled, even although the defendant recover the larger amount, to the general costs of the action; the defendant is entitled to the costs of the counter-claim, but there is no apportionment of such costs as, if the claim and counter-claim had been separate actions, would have been incurred in each of them. Ward v. Morse, 23 Ch. D. 377, C. A. See also Cole v. Firth, 4 Ex. D. 301, n.; Stooke v. Taylor, 5 Q. B. D. 569; and Ellis v. De Silva, 6 Q. B. D. 521. Where the claim and counter-claim are both dismissed with costs, the plaintiff pays the general costs of the action and the defendant the amount only by which the costs have been increased by the counter-claim. Saner v. Bilton, 11 Ch. D. 416; Mason v. Brentini, 15 Ch. D. 287, C. A.

The distinction above pointed out between set-off and counter-claim, as to which vide post, Defences to Actions on Simple Contract-Set-off and Counterclaim, was overlooked in many of the earlier cases on the subject. See judgments in Stooke v. Taylor, supra. It should be observed that the rights of the parties as to costs may be seriously affected by an incorrect entry of the judgment. See Baines v. Bromley, 6 Q. B. D. 691, C. A.

By Rules, 1883, O. xvi., r. 1, a defendant, though unsuccessful, shall be entitled to his costs occasioned by joining under that rule (ante, p. 86), any co-plaintiff who shall not be entitled to relief unless the court in disposing

of the costs of the action shall otherwise direct. See D'Hormusgee v. Grey, 10 Q. B. D. 13.

The stat. 1 & 2 Will. 4, c. 41, s. 19, provides that in any action brought against a special constable, &c., for anything done in pursuance of the act, the plaintiff, though successful," shall not have costs against the defendant unless the judge before whom the trial shall be, shall certify his approbation of the action and of the verdict obtained thereupon." It seems that this section is still in force, vide ante, p. 274.

Order as to costs of or occasioned by third party.] Where a third party, C., has been brought in under Rules, 1883, O. xvi., rr. 48-53, rule 54 provides that "the court or a judge may decide all questions of costs as between a third party and the other parties to the action, and may order any one or more to pay the costs of any other or others, or give such direction as to costs as the justice of the case may require;" and by rule 55, a co-defendant against whom a defendant seeks contribution or indemnity is in the same position as a third party. Thus, costs have been ordered to be paid to C. by the plaintiff; Witham v. Vane, 28 W. R. 812, T. S. 1880, Fry, J.; or, by the defendant; Beynon v. Godden, 4 Ex. D. 246, 247, cor. Huddleston, B.; Dawson v. Shepherd, 49 L. J., Ex. 529, C. A. ; or, C. has been allowed to bear his own costs. Williams v. S. E. Ry. Co., 26 W. R. 352; H. S., 1878, Q. B. D. So again, C. has been ordered to pay to an unsuccessful defendant the costs payable by him to the plaintiff; Hornby v. Cardwell, 8 Q. B. D. 329, C. A.; or, to pay the plaintiff the costs occasioned by his defence. Piller v. Roberts, 21 Ch. D. 198. These orders were made under Rules, 1875, O. lv., r. 1, which was similar in terms to Rules, 1883, O. lxv., rule 1, ante, p. 274 ;. and O. xvi., r. 54, supra, is explicit on the matter.

Order for costs on higher scale.] Under Rules, 1883, O. lxv., r. 8, costs are in general to be allowed on the "lower scale," given in Appendix N. ; but by rule 9, the court or a judge may at the trial or hearing or further consideration of the cause or matter or at the hearing of any application therein, on special grounds arising out of the nature and importance or the difficulty or urgency of the case, order, either generally in any cause or matter, or as to the costs of any particular application made or business done therein, that the costs shall be allowed on the "higher scale." See Norfolk, Duke of, v. Arbuthnot, 6 Q. B. D. 279; In re Terrell, 22 Ch. D. 473, C. A.

By rule 12," in actions founded on contract, in which the plaintiff recovers, by judgment or otherwise, a sum (exclusive of costs) not exceeding 501., he shall be entitled to no more costs than he would have been entitled to had he brought his action in a county court unless the court or a judge otherwise orders." As to the construction to be placed on the word recover," vide post, p. 277.

It would seem that the plaintiff is, in ordinary cases, entitled to an order under this rule, where the defendant is abroad, and could not therefore be served with county court process. Mendelssohn v. Hoppe, W. N. 1884, p. 31, Mathew, J. The rule applies to an action commenced before the rule came into operation where judgment is recovered afterwards. Langley v. Sugden, W. N. 1883, p. 198, Field, J.

Certificate for costs under the County Courts Act, 1867.] By the County Courts Act, 1867 (30 & 31 Vict. c. 142), s. 5, as amended by 45 & 46 Vict. c. 57, s. 4, "if in any action, commenced after the passing of this act, in any of her Majesty's Superior Courts of Record, the plaintiff shall recover a sum

Certificate for Costs under County Courts Act, 1867.

277

less than 201. if the action is founded on contract, or 10l. if founded on tort, whether by verdict, judgment by default, or on demurrer, or otherwise, he shall not be entitled to any costs of suit unless the judge certify on the record that there was sufficient reason for bringing such action in such superior court, or unless the court or a judge at chambers shall by rule or order allow such costs."

The J. Act, 1873, s. 67, enacts that the above section "shall apply to all actions commenced or pending in the said High Court of Justice in which any relief is sought which can be given in a county court." This limitation to causes in which relief can be given in a county court was first introduced by the above section. By sect. 89, the county court can in all causes within its jurisdiction grant relief and give effect to defence and counter-claim as fully as the High Court of Justice could have done. It has no original jurisdiction to entertain an action for malicious prosecution, libel, slander, seduction, or breach of promise of marriage; 9 & 10 Vict. c. 95, s. 58; nor, any action where the claim exceeds 50l.; 13 & 14 Vict. c. 61, s. 1; 19 & 20 Vict. c. 108, s. 24; except in actions founded on the equitable jurisdiction conferred on the county courts by stat. 28 & 29 Vict. c. 99, s. 1.

Money paid into court under a defence of payment into court is recovered within the meaning of the County Courts Act, 1867, s. 5; Boulding v. Tyler, 3 B. & S. 472; 32 L. J., Q. B. 85; Parr v. Lillicrap, 1 H. & C. 615; 32 L. J., Ex. 150; Hewitt & Co. v. Cory, L. R., 5 Q. B. 418; but, it is otherwise where the defence is tender. James v. Vane, 2 E. & E. 883; 29 L. J., Q. B. 169. As to cases in which the payment of money into court and the recovery at the trial are in respect of different causes of action, see Palmer v. Garrett, I. R., 5 C. L. 412, C. P.; Byrne v. M'Evoy, Id. 568; Leonard v. Brownrigg, I. R., 6 C. L. 161, Q. B., and cases there cited.

The proviso in the J. Act, 1873, s. 67, as to the action being one for matter in respect of which relief could be given in the county court, seems to refer both to the amount and nature of the claim which the plaintiff substantiates. See Neale v. Clarke, 4 Ex. D. 295, per Hawkins, J.; and Chatfield v. Sedgwick, 4 C. P. D. 461, per M. R. Thus where the plaintiff's claim was proved to be 1147. and the defendant's set-off to be 1097., it was held, that as the county court had no jurisdiction to entertain the plaintiff's claim, he was not deprived of his costs. Potter v. Chambers, 4 C. P. D. 457; Neale v. Clarke, 4 Ex. D. 286.

Where the plaintiff proved a claim of 351. for rent and damages, and the defendant a counter-claim of 201. for damages, the plaintiff was held entitled to recover the costs of his claim and the defendant the costs of his counter-claim. Stooke v. Taylor, 5 Q. B. D. 569; not following Staples v. Young, 2 Ex. D. 324, where it was held that if the plaintiff proved a claim and the defendant proved a counter-claim of less amount, the plaintiff recovered the balance only. The provisions of the County Courts Act, 1867, s. 5, do not affect the right to costs of a defendant who has succeeded on a counter-claim. Blake v. Appleyard, 3 Ex. D. 195; Chatfield v. Sedgwick, 4 C. P. D. 383, 459, C. A. Hence in the same action the plaintiff, though successful, may be deprived of his costs on his claim, while the defendant' recovers costs on his counter-claim. S. C.

In order to decide, for the purposes of the County Courts Act, 1867, whether an action is founded on contract or on tort, the court will now consider the substantial nature of the action alone, and not its form. Thus, an action for the detention of goods is founded on tort; Bryant v. Herbert, 3 C. P. D. 389, C. A.; and a claim against a common carrier for not safely carrying goods delivered to him for carriage is founded on contract. Fleming v. Manchester Sheffield, &c., Ry. Co., 4 Q. B. D. 81, C. A., overruling Tattan v. Gt. W. Ry. Co., 2 E. & E. 844; 29 L. J., Q. B. 184. See also Bayli

v. Lintott, L. R., 8 C. P. 345. So, an action by the consignor against the carrier for delivering the goods to the consignee, after the consignor has given a notice to stop them in transitu, is founded on tort. Pontifex v. Midland Ry. Co., 3 Q. B. D. 23.

The under-sheriff trying a writ of inquiry can certify under sect. 5. Craven v. Smith, L. R., 4 Ex. 146. So may a county court judge trying an issue under 19 & 20 Vict. c. 108, s. 26; the issue is a sufficient record on which to certify. Taylor v. Cass, L. R., 4 C. P. 614. Where an action is referred to an arbitrator "with all the powers of certifying of a judge at Nisi Prius," he cannot certify after his award has been made. Bedwell v. Wood, 2 Q. B. D. 626.

It has been held that the words "commenced after the passing of this act" are parenthetical, and that sect. 5 applies therefore to an action commenced in an inferior court and removed by certiorari into the superior court, even though at the instance of the defendant. Pellas v. Breslauer, L. R., 6 Q. B. 438, B. C. Sed quære. By O. lxv., r. 12, ante, p. 276, a plaintiff recovering not more than 50l. in contract, requires a judge's order to obtain more costs than he would have been entitled to if he had sued in a county court.

The cases in which plaintiffs were deprived of costs by reason of the verdict not amounting to a sufficient sum, were formerly extended by certain obscure enactments contained in the stats. 31 & 32 Vict. c. 71, and 32 & 33 Vict. c. 51, which conferred admiralty jurisdiction on the county courts; see 31 & 32 Vict. c. 71, s. 9; but these are now repealed by Rules, 1883, O. lxv., r. 1. Tennant v. Ellis, 6 Q. B. D. 46, following Garnett v. Bradley, 3 Ap. Ca. 944, D. P. ante, p. 274.

Order to disallow unnecessary costs.] By Rules, 1883, O. lxv., r. 20, "The court or judge may, at the hearing of any cause or matter" "and whether the same is objected to or not, direct the costs of any indorsement on a writ of summons, pleading, summons, affidavit, evidence," &c., “or other proceeding, or any part thereof, which is improper, vexatious, 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-officer to look into the same, and to disallow the costs thereof, or of such part thereof as he shall find to be improper, unnecessary, vexatious, or to contain unnecessary matter, or to be of unnecessary length, or caused by misconduct or negligence."

Order as to costs occasioned by refusal to admit.] By Rules 1883, O. xxi., r. 9, "Where the court or a judge shall be of opinion that any allegations of fact, denied or not admitted by the defence, ought to have been admitted, the court or judge may make such order as shall be just with respect to any extra costs occasioned by their having been denied or not admitted." We have seen, ante, pp. 70, 71, tit. Admissions, that the judge may relieve a party, called upon to admit a document or fact, under Rules 1883, O. xxxii., rr. 2, 4, from the costs occasioned by his refusal, by a certificate that his refusal was reasonable. This is to be given at the trial; but the court or a judge may at any time allow the costs of proving facts included in the notice to admit : there is no similar provision as to documents.

It seems to be reasonable to refuse to admit a document which the party called upon has no opportunity of inspecting or verifying. Rutter v. Chapman, 8 M. & W. 391, per cur.

Order as to costs of discovery.] By Rules 1883, O. xxxi., r. 25, the costs of discovery by interrogatories or otherwise are in general to be secured by a

Orders and Certificates as to Costs.

279 deposit to be made (rule 26), "by the party seeking such discovery, and shall be allowed as part of his costs where and only where such discovery shall appear to the judge at the trial, or if there is no trial to the court or a judge, or shall appear to the taxing-officer to have been reasonably asked for."

Order for costs of shorthand writers' notes.] Costs of shorthand writers' notes of the trial will not be allowed on taxation, unless a special direction to that effect is given in the judgment. Applications for such directions must be made at the hearing, or before the judgment is drawn up. De la Warr, Earl, v. Miles, 19 Ch. D. 80, C. A.

Order for costs of proving original will.] Where an original will is produced and proved, the judge shall order by which party the costs of the production and proof shall be paid. 20 & 21 Vict. c. 77, s. 65, ante, p. 141.

Certificate for costs of special jury.] The stat. 6 Geo. 4, c. 50, s. 34, provides that the party who has obtained the special jury shall bear the costs thereof, and shall not on taxation be allowed the extra costs thereby caused, "unless the judge before whom the cause is tried shall, immediately after the verdict, certify under his hand on the back of the record, that the same was a cause proper to be tried by a special jury.”

Where this certificate is necessary, it must be applied for immediately after the verdict or nonsuit. In Waggett v. Shaw, 3 Camp. 316, an application on the day after the trial was considered too late. Where the certificate was verbally granted immediately and indorsed on the record, but was not signed by the judge till the costs were undergoing taxation, it was held too late. Grace v. Clinch, 4 Q. B. 606. As to the word "immediate," the following decisions on 3 & 4 Vict. c. 24, s. 2, where the words were "unless the judge or presiding officer before whom such verdict shall be obtained shall immediately afterwards certify on the back of the record," may be found useful. Under that section the judge might take a reasonable time to consider the application for a certificate. He was not bound to give it instantly at the close of the trial, nor before the adjournment of the court; Thompson v. Gibson, 8 M. & W. 281; Page v. Pearce, Ib. 677; nor semb. per Ld. Abinger, C. B., Ib., even on the same day; the object of the legislature being only to exclude the operation of any intervening fact or discussion upon the judge's mind, and to make the certificate "the result of his impression at the time." And he might, by consent or acquiescence of the parties at the trial, certify a long time afterwards. Jones v. Williams, 13 M. & W. 420. See Heden v. Atlantic R. M. S. Navigation Co., 2 E. & E. 671; 29 L. J., Q. B. 191. But where no application for the certificate was made till ten days after, at the next assize town, and the certificate was then made, the court set it aside as being too late. Forsdike v. Stone, L. R., 3 C. P. 607. And, it seems that when the judge had at the trial refused the certificate, he could not afterwards grant it. See Folkard v. Metropolitan Ry. Co., L. R., 8 C. P. 470. The court above had no jurisdiction to review the discretion exercised by the judge at Nisi Prius. Barker v. Hollier, 8 M. & W. 513; Richardson v. Barnes, 4 Exch. 128.

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