198; Edison, &c., Electric Light Co. v. Holland, 41 Ch. D. 28, C. A. Where in an action for specific performance the defendant was held liable on his contract, which he had denied, and C. liable to indemnify him, C. was ordered to pay the costs of the third party proceedings, but not of the action, as the defence was for the defendant's benefit alone. Blore v. Ashby, 42 Ch. D. 682. Many of these orders were made under Rules, 1875, O. lv. r. 1, which was similar in terms to Rules, 1883, O. lxv. r. 1, ante, p. 291; and O. xvi. r. 54, supra, is explicit on the matter. The liability of C. to costs is not affected by the County Courts Act, 1888, s. 116, infra. Bates v. Burchell, and Lewin v. Trimming, cited post, p. 295.

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.

As to certificate for costs on the High Court scale, in those cases in which the plaintiff would by reason of the County Courts Act, 1888, s. 116, receive them on the county court scale, vide infra, and post, p. 295.

Certificate or order for costs under the County Courts Act, 1888.] The County Courts Act, 1888 (51 & 52 Vict. c. 43), s. 116, enacts that

With respect to any action brought in the High Court which could have been commenced in a county court, the following provisions shall apply:

66

(1.) If in an action founded on contract the plaintiff shall recover a sum less than 207., he shall not be entitled to any costs of the action, and if he shall recover a sum of 201. or upwards, but less than 507., he shall not be entitled to any more costs than he would have been entitled to if the action had been brought in a county court; and

“(2.) If in an action founded on tort the plaintiff shall recover a sum less than 107., he shall not be entitled to any costs of the action; and, if he shall recover a sum of 107. or upwards, but less than 207., he shall not be entitled to any more costs than he would have been entitled to if the action had been brought in a county court; unless in any such action, whether founded on contract or on tort, a judge of the High Court certifies that there was sufficient reason for bringing the action in that court, or unless the High Court or a judge thereof at chambers shall by order allow costs. Provided that, if in any action founded on contract the plaintiff shall within twenty-one days after the service of the writ, or within such further time as may be ordered by the High Court or a judge thereof, obtain an order under Order xiv. of the Rules of the Supreme Court empowering him to enter judgment for a sum of 207. or upwards, he shall be entitled to costs according to the scale for the time being in use in the Supreme Court." This section replaces Rules, 1883, O. lxv. r. 12, and the County Courts Act, 1867 (30 & 31 Vict. c. 142), s. 5, as amended by 45 & 46 Vict. c. 57, s. 4, and applied by the J. Act, 1873, 8. 67.

By sects. 56, 57, the county court has jurisdiction in all personal actions where the claim does not exceed 50%., whether on balance of account or otherwise, or after an admitted set-off, but it has no original jurisdiction in any action for libel or slander, seduction, or breach of promise of marriage. By sect. 58 it has jurisdiction to recover a demand

not exceeding 501., whether the whole or part of the unliquidated balance of a partnership account, or the share under an intestacy or legacy under a will. By sects. 56, 59, 60, its powers of trying actions of ejectment and those in which the title to corporeal or incorporeal hereditaments comes into question, are limited to those in which the annual value or rent of the lands, tenements, or hereditaments in dispute does not exceed 501., or, in the case of an easement, where neither the dominant or servient tenement exceeds that value. By sect. 67, in cases within the equitable jurisdiction of the county court, the limit of value is 5001. To fall within sect. 57, the set-off must be admitted by both parties. Hubbard v. Goodley, 25 Q. B. D. 156. Hereditament in sect. 56, includes every estate in land. Tomkins v. Jones, 22 Q. B. D. 599, C. A.

By the J. Act, 1873, s. 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.

Money paid into court under a defence of payment into court is recovered within the meaning of the County Courts Act, 1888, s. 116; 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 first paragraph in sect. 116, 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 114. 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, 1888, s. 116, 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.; Ahrbecker v. Frost, 17 Q. B. D. 606. Nor does the section apply where the defendant succeeds on a counter-claim against a third party. Bates v. Burchell, W. N. 1884, p. 108, Field, J.; see also Lewin v. Trimming, 21 Q. B. D. 230. Nor does it apply to the plaintiff's costs of a counter-claim on which he has succeeded, although he has recovered less than 507. on his claim. Amon v. Bobbett, 22 Q. B. D. 543, C. A.

In order to decide for the purposes of the County Courts Act, 1888, 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 Baylis 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 plaintiff is, it would seem, in ordinary cases, entitled to a certificate, under sect. 116, that there was sufficient reason for bringing the action in the High Court, where the defendant is abroad, and could not therefore be served with county court process. See Mendelssohn v. Hoppe, W. N., 1884, p. 31, Mathew, J. Where, in an action of contract, the plaintiff claimed 487., and obtained an order under Rules, 1883, O. xiv., to sign judgment for 45l., and on proceeding to trial recovered 31. more, he is entitled, under the proviso in sect. 116, ante, p. 294, to all the costs of the action on the High Court scale. Barker v. Hempstead, 23 Q. B. D. 8. The section applies to an action commenced before the Act came into operation, where judgment is recovered afterwards. See Langley v. Sugden, W. N., 1883, p. 198, Field, J.

The judge was not bound to certify, although the plaintiff had commenced a suit in the county court, which the defendant stayed by proceedings under 19 & 20 Vict. c. 108, s. 39, now replaced by 51 & 52 Vict. c. 43, s. 62. Flitters v. Allfrey, L. R., 10 C. P. 29. Where a judge has certified for costs under sect. 116, no appeal lies, by reason of J. Act, 1873, s. 49. Bazett v. Morgan, 24 Q. B. D. 48.

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. But where an action has been referred, costs to abide the event, a judge at chambers may certify after award made. Hyde v. Beardsley, 18 Q. B. D. 244.

Sect. 116 seems not to apply to an action commenced in an inferior court and removed by certiorari into the superior court, for the wording of the section avoids the construction put upon the County Courts Act, 1867, s. 5, in Pellas v. Breslauer, L. R., 6 Q. B. 438, B. C.

Order to disallow unnecessary costs.] By Rules, 1883, O. lxv. r. 27 (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. 73, 74, 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 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. 149.

Certificate for costs of special jury.] The statute 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 66 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.

PART II.

EVIDENCE IN PARTICULAR ACTIONS.

Effect of the Judicature Acts, 1873, 1875.

THE J. Acts, 1873, 1875, made great alterations in the practice and procedure of the courts. All the superior courts at Westminster were thereby constituted divisions of the High Court of Justice, each division having all the jurisdiction which was previously vested in each or either of the courts before they were consolidated. See Pinney v. Hunt, 6 Ch. D. 98; Bradford v. Young, 26 Ch. D. 656; Priestman v. Thomas, 9 P. D. 70, 210. And by the Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 93, the jurisdiction of the London Court of Bankruptcy has been also transferred to the High Court.

By the J. Act, 1873, effect is to be given by every division to equitable estates, interests, and principles, in the same way as they were previously recognized by the courts of equity; mortgagees and assignees of choses in action may in general sue in their own names; stipulations as to time, &c., are not to be considered of the essence of a contract where they were not so in equity, and in general equity rules are to prevail. The principal provisions of the J. Act, 1873, relating to these subjects are as follows:

Sect. 24. "In every civil cause or matter commenced Effect to be given in the High Court of Justice, law and equity shall be to equitable administered by the High Court of Justice and the Court estates and interests. of Appeal respectively according to the rules following:

(1.) "If any plaintiff or petitioner claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against any deed, instrument, or contract, or against any right, title, or claim whatsoever asserted by any defendant or respondent in such cause or matter, or to any relief founded upon a legal right, which heretofore could only have been given by a court of equity, the said courts respectively, and every judge thereof, shall give to such plaintiff or petitioner such and the same relief as ought to have been given by the Court of Chancery in a suit or proceeding for the same or the like purpose, properly instituted before the passing of this Act."

(2.) "If any defendant claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against any deed, instrument, or contract, or against any right, title, or claim asserted by any plaintiff or petitioner in such cause or matter, or alleges any ground of equitable defence to any claim of the plaintiff or petitioner in such cause or matter, the said courts respectively, and every judge thereof, shall give to every equitable estate, right, or ground of relief so claimed, and to every equitable defence so alleged, such and the same effect, by way of defence against the claim of such plaintiff or petitioner, as the Court of Chancery ought to have given if the same or the like matters had been